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Manuel Fernandez v. the People of the State of

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 24, 2012

MANUEL FERNANDEZ, PETITIONER,
v.
THE PEOPLE OF THE STATE OF
CALIFORNIA, COUNTY OF LOS ANGELES, RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

Petitioner, a prisoner serving a federal sentence in Manchester, Kentucky, filed a "Petition for Writ of Habeas Corpus" on October 19, 2012. The Petition challenges the legality of three California state convictions occurring from 1989 through 1994. Petitioner alleges that counsel who represented him in the 1989-94 proceedings was ineffective. Petitioner concedes that he has fully served his sentences for the state convictions, but alleges that he is presently serving a federal sentence enhanced because of these state convictions.

DISCUSSION

For the reasons discussed herein, it plainly appears on the face of the Petition that Petitioner is not entitled to habeas relief. The Petition should be denied and dismissed without prejudice for lack of subject matter jurisdiction.

Subject matter jurisdiction over habeas petitions exists only where, at the time the petition is filed, the petitioner is "in custody" under the conviction challenged in the petition. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); 28 U.S.C. §§ 2241(c), 2254(a); see Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) ("in custody" requirement is jurisdictional). A habeas petitioner does not remain "in custody" under a conviction once the sentence imposed for the conviction has "fully expired." Maleng v. Cook, 490 U.S. at 492.

The sentences for Petitioner's 1989-94 California state convictions have fully expired. Because Petitioner was not "in custody" under those convictions at the time he filed the present Petition, habeas jurisdiction is unavailable to challenge those convictions.

Even if this Court were to construe the present Petition as a challenge to Petitioner's federal sentence as allegedly enhanced by the expired state convictions, the result herein would be the same. Petitioner's exclusive remedy to challenge the federal sentence would be a motion filed with the sentencing court under 28 U.S.C. section 2255. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). In any event, Petitioner's challenge to his federal sentence would fail as a matter of law under Daniels v. United States, 532 U.S. 374, 382 (2001).

If . . . a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse. The presumption of validity that attached to the prior conviction at the time of sentencing is conclusive, and the defendant may not collaterally attack his prior conviction through a motion under § 2255.

Id. /// /// // /// /// /// ///

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition without prejudice.*fn1

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.


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