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Alva v. People

April 22, 2010


The opinion of the court was delivered by: Gary A. Feess United States District Judge


On April 13, 2010, petitioner Brian Alva, a person proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction and sentence in Orange County Superior Court case no. 07WF0032 on the following grounds: (1) "IAC claim" --"My 1997 conviction for assault with costic [sic] chemicals [P.C. §] 244 was not a strike"; (2) "Intent to cause a collision state of mind[.] What was my intention[?]" -- "My state of mind was not to run my car into another car"; and (3) "Care and custody [P.C. §] 273A" --"I did not have physical custody when I got into accident. I did not know my son was in the other vehicle[.]" Petition at 5-6.


As an initial matter, petitioner, by naming "The People" as respondent, has not named a proper respondent. The petitioner is not currently confined in a state institution,*fn1 and assuming he "is on probation or parole due to the state judgment he is attacking[,] [t]he named respondents shall be the particular probation or parole officer responsible for supervising the [habeas] applicant, and the official in charge of the parole or probation agency, or the state correctional agency, as appropriate." The Advisory Committee Notes to the 1976 Adoption of Rule 2(b). Here, petitioner has not named the proper respondents.

Moreover, the Court is unable to review any of the claims petitioner sets forth in his petition. Specifically, claim (1) is moot and claims (2) and (3) are not cognizable in this proceeding. In conducting habeas review, a federal court is limited to deciding whether a state court decision violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed. 2d 385 (1991); Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed. 2d 783 (1982). Federal habeas corpus relief "does not lie for errors of state law[,]" Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed. 2d 606 (1990); McGuire, 502 U.S. at 67, 112 S.Ct. at 480; see also Dugger v. Adams, 489 U.S. 401, 409, 109 S.Ct. 1211, 1216-17, 103 L.Ed. 2d 435 (1989) ("[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution."); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 875, 79 L.Ed. 2d 29 (1984) ("A federal court may not issue the writ [of habeas corpus] on the basis of a perceived error of state law."). Here, claims (2) and (3) neither cite nor refer to any constitutional provision or federal statute; thus, they are not cognizable in this proceeding.

Regarding claim (1), which the Court infers refers to ineffective assistance of counsel (assuming arguendo that can be considered a constitutional claim without citation to any constitutional provision), "federal courts may not 'give opinions upon moot questions or abstract propositions.'" Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 2067, 135 L.Ed. 2d (1996)(per curiam) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 2d 293 (1895)); see also Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed. 2d 353 (1982) (per curiam) ("In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." (citations and internal quotation marks omitted)). A claim in a habeas petition challenging a conviction becomes moot when it is shown that the petitioner has already received all the relief possible from that claim. Sibron v. State of New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed. 2d 917 (1968); Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994). Here, the California Court of Appeal, in considering petitioner's habeas petition, found claim (1) to have merit, determined petitioner's trial counsel rendered ineffective assistance at petitioner's sentencing hearing, and remanded petitioner's criminal matter to the trial court for resentencing.

See People v. Alva, 2008 WL 4817512, *9 (Cal. App. 4 Dist.) (unpublished opinion) ("[W]e find there was ineffective assistance of counsel. Further, prejudice to [petitioner] is obvious, as his sentence could have been significantly reduced had trial counsel made the argument to the court that has been made in this habeas petition. It appears the court based its finding of the existence of a prior 'serious felony' entirely on [petitioner's] guilty plea, in which he admitted he threw an unspecified 'caustic liquid.' There is no evidence in the record before us to suggest [petitioner] utilized either acid or a flammable substance in committing his violation of [P.C.] section 244. We grant [petitioner's] petition for writ of habeas corpus, and remand for resentencing in conformity with this opinion."). Since the California Court of Appeal afforded petitioner all the relief due him from claim (1), that claim is moot.

Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal. . . ." 28 foll. U.S.C. § 2254, Rule 4. Here, the habeas petition is defective on its face since it does not name a proper respondent and does not set forth either a cognizable or a non-moot claim; thus, the petition should now be summarily dismissed without prejudice.*fn2

The Court finds an appeal would not be taken in good faith, and that petitioner has not made a substantial showing he has been denied a constitutional right and that this Court was not correct in its procedural rulings, for the reasons set forth herein; accordingly, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R. App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed. 2d 542 (2000); Mayfield v. Calderon, 229 F.3d 839, 900 (9th Cir. 2000).


IT IS HEREBY ORDERED that Judgment shall be entered SUMMARILY DISMISSING without prejudice the petition for writ of habeas corpus and action.

IT IS FURTHER ORDERED that a Certificate of ...

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