United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
accused of rape and forced oral copulation, pled no contest
to false imprisonment and received a sentence of 32 months.
This conviction is referenced as the “2003 Placer
County conviction, ” or shortened to the “2003
conviction.” Although petitioner did not appeal his
guilty (or no contest) plea, he immediately began to suffer
“pleader's remorse” as he commenced a long
series of ultimately fruitless state habeas actions seeking
to withdraw his plea.
issue in respondent's motion to dismiss, ECF No. 15, does
not involve the merits of petitioner's accusations;
rather the issue centers about whether petitioner is
“in custody” for purposes of federal habeas
corpus law. For the reasons set for herein, the motion should
28, 2003, petitioner was sentenced to 32 months (included a
prior strike) for false imprisonment. ECF No. 16-1.
Petitioner had entered into a plea agreement in which more
serious sexual assault charges were pled down to the false
imprisonment. See ECF No. 32-1. Pertinent to the
current “in custody” issue:
A restitution fine… is $400 and an additional
restitution fine of $400… is stayed pending completion
of parole… The period of parole shall not exceed three
years, unless parole is suspended and you are returned to
custody for a violation of parole. In that event, the period
under parole supervision or in custody shall not exceed 12
months from the date of the initial parole.
16-1 at 11. Petitioner concedes that his parole term stemming
from the 2003 conviction was discharged. ECF No. 21 at 5
(“I have proven with exhibit (1) which is attached that
I have a current protected property interest notwithstanding
the fact that the unconstitutional 32 month prison term and
the four year parole term has been discharged.”).
However, the parties are silent as to precisely when the
discharge occurred. Nevertheless, given the terms of the
sentence, it is obvious that parole was discharged long
before the filing of this federal petition.
mentioned previously, petitioner did not appeal from his
conviction, but filed 8 state habeas petitions commencing in
2004 with the last one filed in late 2018. Petitioner's
fourth state habeas petition was denied on December 28, 2016
because petitioner was not “in custody” for the
2003 conviction. See ECF No. 16-7.
suffered at least one further conviction in which this 2003
conviction was utilized for recidivist sentencing purposes,
the “2015 Sacramento County
conviction.” Petitioner claims that the restitution
portion of the 2003 sentence had yet to be satisfied at the
time he filed this federal petition. ECF No. 21 at 9, 12.
2254(a)'s “in custody” requirement is
jurisdictional and therefore “it is the first question
we must consider.” See Williamson v. Gregoire,
151 F.3d 1180, 1182 (9th Cir.1998) (stating the same as to 28
U.S.C. § 2241's “in custody”
requirement).” Bailey v. Hill, 599 F.3d 976,
978 (9th Cir. 2010). Petitioner confuses his standing to
bring a habeas petition challenging his 2003 conviction with
the jurisdictional requirement of “in custody.”
He certainly alleges an injury from his supposedly invalid
2003 conviction, but federal habeas corpus requires more than
ordinary standing to bring a civil action. If the law were
otherwise, no state conviction would ever be final and could
be challenged as long as a petitioner's lifetime.
means more than the fact of physical incarceration. A serious
restraint on petitioner's liberty, such as probation or
parole status, will suffice to render a petitioner “in
custody.” Maleng v. Cook, 490 U.S. 488, 492
(1989). However, the mere fact that a conviction has been
used to enhance a sentence on a successor crime does not mean
one is “in custody” for the conviction enhancing
the sentence. Id. Thus, that petitioner's 2015
sentence was enhanced because of the existence of the 2003
conviction is inconsequential to the “in custody”
does petitioner's belief-- that the assertedly erroneous
2003 conviction damages his reputation or future parole
prospects-- reinvigorate his custody. Collateral consequences
to a conviction do not suffice to place one “in
custody.” Wenzl v. People of the State of
California, No. 06-0224-FMC MLG, 2006 WL 2917577 (C.D.
Cal. June 29, 2006) (citing cases including Feldman ...