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Walter S. Langston v. Beverly Swanson

April 30, 2013

WALTER S. LANGSTON,
PLAINTIFF,
v.
BEVERLY SWANSON, PAROLE AGENT, 1915(G) REGION 1 PAROLE UNIT; AND K. CATER, PAROLE COMMISSIONER, BOARD OF PRISON TERMS, DEFENDANTS.



The opinion of the court was delivered by: Edward F. Shea Senior United States District Judge

ORDER DISMISSING THIRD AMENDED COMPLAINT, DIRECTING ENTRY OF JUDGMENT, AND CLOSING FILE

I.INTRODUCTION

Plaintiff Walter S. Langston's initial complaint was filed on October 17, 2008. ECF No. 1. On March 27, 2008, the Court dismissed this action without prejudice because Plaintiff failed to submit a certified prison trust account statement, as required by 28 U.S.C. § 1915(a)(2), within sixty (60) days of filing his Complaint. ECF No.

15. Plaintiff belatedly complied and, on January 8, 2010, he moved for reconsideration of the dismissal order and judgment. The Court granted his motion, vacated the judgment, and reopened the case. ECF No. 20. On May 30, 2012, after nearly two years of inactivity in the case, the Court directed Plaintiff to submit a status update indicating whether he wished to pursue his claims. ECF No. 24.

Plaintiff indicated he wished to pursue his claims and sought leave to file an amended complaint, which the Court granted. ECF No. 27.

On August 27, 2012, Plaintiff submitted his Second Amended Complaint. ECF No. 28. On January 16, 2013, the Court dismissed certain claims with prejudice and granted Plaintiff leave to either a) file another amended complaint stating claims upon which relief could be granted, or b) voluntarily dismiss his complaint. ECF No. 29. Plaintiff elected the former approach, and he filed his Third Amended Complaint on March 11, 2013. ECF No. 33.

The Third Amended Complaint is now before the Court for screening pursuant to 28 U.S.C. § 1915A. For the reasons stated herein, Plaintiff's present allegations fail to state a claim upon which relief can be granted. Moreover, because Plaintiff has now twice failed to file a legally-sufficient complaint, the Court dismisses the complaint and directs entry of judgment in favor of Defendants.

II.BACKGROUND

A.Factual Allegations*fn1

On March 9, 2001, Plaintiff appeared before Judge Michael Virga of the Sacramento County Superior Court for sentencing following his conviction by jury trial for burglary and receiving stolen property. Plaintiff was sentenced to a total of six years imprisonment on the substantive counts, and he also received three consecutive one-year sentence enhancements for three prior criminal convictions. Because one of those prior convictions was for escaping from custody ---custody which was imposed for one of his prior convictions -- the trial court was undecided whether the escape-from-custody conviction counted as a "separately served" conviction under California Penal Code § 667.5(b) for purposes of receiving a one-year enhancement. The trial court stayed the one-year enhancement for his escape-from-custody conviction, resulting in a total sentence of eight years. The Third District Court of Appeals subsequently modified the judgment by striking the one-year stayed enhancement for the escape-from-custody conviction; otherwise, the appellate court affirmed in all respects.

In a published opinion, the Supreme Court of California concluded that Plaintiff's escape-from-custody conviction qualified as a separately-served prison term within the meaning of § 667.5(b). People v. Langston, 33 Cal. 4th 1237, 1241 (2004). The court concluded that the appellate court erred in striking the enhancement, and it remanded for imposition of the one-year enhancement. Id. at 1246. The appellate court subsequently remanded to the trial court, Judge Virga, for imposition of the additional sentence. By way of remittur issued on March 8, 2005, the appellate court instructed Judge Virga to impose the additional one-year enhancement for the escape from custody conviction. Resentencing Tr. of 5/13/05, People v. Langston, No. 00F09092 (Sac. Cnty. Super. Ct.), Ex. I to Second Am. Compl., ECF No. 28, at 61-63.

On February 16, 2005, after the California Supreme Court issued its opinion - but prior to the issuance of the remittur or the resentencing hearing - Plaintiff became eligible for release and parole on his original sentence. Although the Sacramento District Attorney's (D.A.) office apparently sought to have Plaintiff held in custody, and although Judge Virga ordered the Department of Corrections to detain Plaintiff pending the resentencing hearing, Plaintiff was inadvertently released from custody and placed on parole.

At this point, Plaintiff apparently believed that the California Supreme Court's order vacated his underlying conviction and that he was therefore entitled to be released outright, with no imposition of parole. On April 5, 2005, while on parole, a warrant was issued for Plaintiff's arrest for violating parole conditions. He was arrested by officers of the Sacramento Police Department on May 3, 2005. While awaiting his parole revocation hearing, on May 13, 2005, he was resentenced before Judge Virga to an additional year in custody as a result of the previously-stayed sentence enhancement. On June 3, 2005, while serving that new one-year sentence, Plaintiff appeared before the Board of Prison Terms for parole revocation and was sentenced to a nine-month term of imprisonment for violating parole ...


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