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Bland v. Pfieffer

United States District Court, S.D. California

April 4, 2018

JOSHUA DAVIS BLAND, Petitioner,
v.
CHRISTIAN PFIEFFER, Warden, Respondent.

          REPORT AND RECOMMENDATION RE: (1) CONSTRUING MOTION TO VACATE AS AN AMENDED PETITION; (2) DISMISSING THE AMENDED PETITION; (3) DENYING THE MOTION FOR RULING [ECF NO. 18]; AND (4) DISMISSING THE ACTION

          HON. WILLIAM V. GALLO, UNITED STATES MAGISTRATE JUDGE

         Petitioner Joshua Davis Bland, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 13, 2017 which challenged his 1998 conviction for seven counts of lewd acts on a child in violation of Penal Code § 288(a), in San Diego Superior Court No. SCS227759. (Pet., ECF No. 1.) After the Court notified Bland that his Petition contained unexhausted claims and provided him with options to address this issue, Bland instead filed a document entitled “Motion to Vacate Previous Habeas Contentions and to Set Aside Void Judgment Per Rule 60(b)(4)” (“Motion to Vacate” or “Mot. to Vacate”). (ECF No. 6.) Respondent filed a response to the motion (ECF No. 14), and Bland filed a Reply (ECF No. 19).

         The Court has read and considered the Motion (ECF No. 6), the Response (ECF No. 14), the documents lodged by Respondent in support of the Response (ECF No. 15), and the legal arguments presented by both parties. For the reasons discussed below, the Court recommends the Motion to Vacate be CONSTRUED as an Amended Petition and that it be DISMISSED with prejudice. In addition, the Court RECOMMENDS Bland's Motion for Ruling (ECF No. 18) be DENIED as moot.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On November 5, 1998, Bland pleaded guilty in San Diego Superior Court to seven counts of lewd act on a child under 14 years of age, a violation of California Penal Code § 288(a). (Lodgment No. 2, ECF No. 15-2 at 1.) He was sentenced to 12 years in prison. (Lodgment No. 1, ECF No. 15-1.) When Bland was scheduled to be released from custody, the San Diego District Attorney's Office filed a petition to commit Bland as a sexually violent predator pursuant to California Welfare and Institutions Code §§ 6600 and 6604. (Lodgment No. 2, ECF No. 15-2.) After a hearing, Bland was committed to an indeterminate term under the sexually violent predator provisions. (Id.)

         In 2014, while he was under commitment and treatment at Coalinga State Hospital, Bland was found to be in possession of child pornography and was subsequently prosecuted for that crime. (Lodgment No. 4, ECF No. 15-4.) Following a jury trial, he was convicted of two counts of possession of child pornography, a violation of Penal Code § 311.11(a) and sentenced to two consecutive terms of 25 years-to-life in prison. (Lodgment No. 3, ECF No. 15-3.)

         Bland appealed his child pornography convictions to the California Court of Appeal, Fifth Appellate District, which affirmed his conviction in a written, unpublished opinion. (Lodgment No. 4, ECF No. 15-4.) Bland does not appear to have challenged his child pornography convictions in the California Supreme Court.[1]

         Bland claims he filed a petition for writ of habeas corpus challenging his 1998 conviction in the San Diego Superior Court, which was denied. (Pet., ECF No. 1 at 3.) Bland next filed a petition for writ of mandamus in the California Court of Appeal, Fourth Appellate District on October 11, 2017. (Lodgment No. 5, ECF No. 15-5.) In that petition, he claimed, as he does in his current federal petition, that the state court and state law enforcement authorities lacked jurisdiction over him and therefore the prosecution for lewd act with a child was without force of law. (Id.) The state appellate court denied the petition on October 13, 2017. (Lodgment No. 6, ECF No. 15-6.) Bland did not file a petition for writ of mandamus or petition for writ of habeas corpus in the California Supreme Court.

         Bland filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 in this Court on November 13, 2017. (ECF No. 1.) He thereafter filed a Motion to Vacate. (ECF No. 6.) Respondent filed a response to the motion and lodgments on February 28, 2018. (ECF Nos. 14-15.) Bland filed a Reply on March 22, 2018, and a Motion for Ruling seeking a default judgment in the action due to Respondent's silence. (ECF Nos. 18-19.)

         II. DISCUSSION

         Petitioner asks the Court to declare his 1998 conviction void pursuant to Federal Rule of Civil Procedure 60(b)(4) because the state courts do not have the authority or jurisdiction to charge him with crimes. (Mot. to Vacate, ECF No. 6 at 1-9.) He argues that because he has not given his explicit consent to be subject to the state's laws or constitution, he is not a party to any such laws or constitution and therefore the judgment against him is void. (Id.)

         A. Federal Rule of Civil Procedure 60(b) is Inapplicable to Bland's Claims

         Federal Rule of Civil Procedure 60(b) entitles the moving party to ...


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