United States District Court, E.D. California
JONATHAN W. MUNDO, Petitioner,
KIM HOLLAND, Respondent.
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS
FOR LACK OF HABEAS JURISDICTION (DOC. 9) ORDER DECLINING TO
ISSUE CERTIFICATE OF APPEALABILITY ORDER DENYING AS MOOT
PETITIONER’S MOTION FOR EMERGENCY STAY (DOC. 14) ORDER
DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
2012, Jonathan Mundo was convicted of two counts of robbery
and one count of escape and sentenced to four years and eight
months. While in custody in California, he was transferred to
Nevada on charges pending there. When he arrived in Nevada,
he learned he was being charged with crimes not originally
alleged. However, he pleaded guilty to several counts of
robbery, including counts based on the new charges and was
sentenced in July 2013. Petitioner contends that the
additional charges violated the Interstate Agreement on
Detainers Act because they were not contained in the
detainer. Thus, in this action, he seeks to have his Nevada
convictions set aside and the charges dismissed.
reasons set forth below, the Court GRANTS the
respondent’s motion to dismiss.
Procedural Grounds for Motion to Dismiss
has filed a Motion to Dismiss the petition for lack of habeas
jurisdiction. Rule 4 of the Rules Governing Section 2254
Cases allows a district court to dismiss a petition if 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 . . . .” Rule 4 of the
Rules Governing Section 2254 Cases.
Ninth Circuit has allowed Respondent’s to file a Motion
to Dismiss in lieu of an Answer if the motion attacks the
pleadings for failing to exhaust state remedies or being in
violation of the state’s procedural rules.
See, e.g., O’Bremski v.
Maass, 915 F.2d 418, 420 (9th Cir. 1990)
(using Rule 4 to evaluate motion to dismiss petition for
failure to exhaust state remedies); White v. Lewis,
874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4
as procedural grounds to review motion to dismiss for state
procedural default); Hillery v. Pulley, 533 F.Supp.
1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a
Respondent can file a Motion to Dismiss after the court
orders a response, and the Court should use Rule 4 standards
to review the motion. See Hillery, 533 F.Supp. at
1194 & n. 12.
case, Respondent's Motion to Dismiss is based on a lack
of habeas corpus jurisdiction. Because Respondent's
Motion to Dismiss is similar in procedural standing to a
Motion to Dismiss for failure to exhaust state remedies or
for state procedural default and Respondent has not yet filed
a formal Answer, the Court will review Respondent’s
Motion to Dismiss pursuant to its authority under Rule 4.
Allegations In The Petition.
currently has custody of Petitioner pursuant to a 2012
judgment of the San Bernardino County Superior Court, which
imposed a term of four years and eight months for convictions
on two counts of robbery and one count of escape.
petition alleges that the State of Nevada, while Petitioner
was incarcerated in California, filed detainers against him
in December 2012 and that, pursuant to those detainers,
Petitioner was transferred to the custody of Nevada officials
on January 16, 2013. (Doc. 1, p. 16). Once Petitioner was in
Nevada custody, Petitioner alleges that state officials there
filed additional charges against him based on facts not
alleged in the original detainers. (Id., pp. 16-17).
Petitioner alleges he pleaded guilty to several counts of
robbery on May 3, 2013, including counts based on the new
charges. (Id., p. 17). Petitioner was sentenced in
the Nevada case on July 5, 2013. (Id.).
contends that the additional charges were included in the
Nevada proceedings by way of indictment, in violation of the
Interstate Agreement on Detainers Act (“IADA”).
Petitioner argues that, pursuant to the IADA, he agreed to be
brought to trial on the facts and charges contained in the
detainer; however, he never agreed to be brought to trial on
the added facts and charges contained in the indictment,
i.e., the robbery of a jewelry store. (Id., p. 19).
Petitioner reads the language of the statute to require
dismissal of the charges if the requesting defendant is not
tried on those charges within a specified period of time.
(Id., p. 20). Petitioner reasons that, since he was
convicted of additional charges not in the original detainer,
the express terms of the IADA were violated. (Id.).
As relief, Petitioner requests that his conviction be set
aside and the charges dismissed.
response to the motion to dismiss, Petitioner has also filed
an emergency motion asking the Court to prohibit the State of
California from permitting Petitioner to be released to the
custody of Nevada officials at the conclusion of his
California prison term, which Petitioner contends will occur
on September 3, 2016. (Doc. 14, pp. 1-2). Petitioner reasons
that, because Nevada violated the IADA, California should not
be permitted to “honor” Nevada’s detainer
General Habeas Principles
basic scope of habeas corpus is prescribed by statute.
Subsection (c) of Section 2241 of Title 28 of the United
States Code provides that habeas corpus shall not extend to a
prisoner unless he is “in custody in violation of the
Constitution.” 28 U.S.C. § 2254(a) states that the
federal courts shall entertain a petition for writ of habeas
corpus only on the ground that the petitioner “is in
custody in violation of the Constitution or laws or treaties
of the United States. See also, Rule 1 to the Rules
Governing Section 2254 Cases in the United States District
Court. The U.S. Supreme Court has held that “the
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody . . .” Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973). Furthermore, in
order to succeed in a petition pursuant to 28 U.S.C. §
2254, Petitioner must demonstrate that the adjudication of
his claim in state court resulted in a decision that was
contrary to, or involved an unreasonable application of,