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Russell v. Borders

United States District Court, E.D. California

September 4, 2019

RONALD RUSSELL, Petitioner,
v.
DEAN BORDERS, Respondent.

          ORDER

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE.

Petitioner, now a former state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties (ECF Nos. 12 and 14), this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court is Respondent's motion to dismiss (ECF No. 15), Petitioner's opposition (ECF No. 20), and Respondent's reply (ECF No. 23). Respondent argues the instant federal petition should be dismissed because petitioner has been released from custody.

         I. BACKGROUND

         Petitioner was convicted on March 24, 2014, in the Sacramento County Superior Court on fifty-two counts of grand theft, and sentenced on April 25, 2014, to a term of thirteen years and four months in state prison. See ECF No. 1, at 1. Petitioner only appealed on one ground; the trial court had miscalculated Petitioner's presentencing jail credits. See id. at 32. The credit miscalculation was corrected and the California Court of Appeal, Third District, affirmed the conviction and sentence on December 10, 2015. Id. Petitioner filed the instant federal habeas corpus petition on November 27, 2017. See ECF No. 15, at 2. Petitioner was released from the California Department of Corrections and Rehabilitations and placed on Post Release Community Supervision on December 1, 2017. Id. On July 12, 2018, Petitioner was discharged from post release supervision pursuant to California Penal Code § 3456(a)(2) after completing six consecutive months on release with no violations of Petitioner's conditions of post release supervision that resulted in a custodial sanction. Id.

         II. DISCUSSION

         The “party moving for dismissal on mootness grounds bears a heavy burden.” Coral Const. Co. v. King Cty., 941 F.2d 910, 927 (9th Cir. 1991). Here, the Court finds Respondent has failed to meet his burden because he has not made an argument in his motion to dismiss that is both persuasive and supported by proper legal authority. Rather, it appears Respondent misunderstands habeas law generally, as Respondent's repeated misapplication of the law resulted in improper arguments that necessarily lead to the conclusion that Respondent has failed to carry his burden. This alone is sufficient to deny the motion to dismiss. Even applying proper legal standards, the court still finds dismissal would be inappropriate.

         A.In Custody” Requirements

         This case proceeds on a petition for writ of habeas corpus filed pursuant to 28 U.S.C.A. § 2254(a), which states:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C.A. § 2254(a) (emphasis added).

         Respondent alleges that because Petitioner was released from custody seven months after he filed his habeas petition with the federal court, “Respondent therefore no longer has any custody of Petitioner to defend, and Petitioner no longer has any Respondent-imposed constraint on liberty of which he could complain.” See ECF No. 15, at 5. The Court finds this argument flawed and unpersuasive. Respondent cites Bailey v. Hill to illustrate the difference between the two statutory “in custody” requirements, but Respondent misunderstands the distinction and improperly analyzes this case to support his contentions. 599 F.3d 976, 978-79 (9th Cir. 2010). Regarding the two “in custody” requirements, Bailey states:

We note that § 2254(a) deploys the term “in custody” twice. The first requirement is that the petition be filed “in behalf of a person in custody, ” and the second is that the application for the writ of habeas corpus can only be entertained “on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Although the precedents that we review herein generally speak of the “in custody” requirement, it can be seen literally that this statutory requirement has two distinct aspects.

Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010).

         Bailey affirms the first statutory use of “in custody” means the “petitioner must be in custody at the time that the petition is filed.” Id. at 979. Bailey further states that “the petitioner's subsequent release from custody does not itself deprive the federal habeas court of its statutory jurisdiction” because “physical custody is not indispensable to confer jurisdiction.” Id. (internal quotation marks omitted). In Bailey, the Ninth Circuit establishes the first “in custody” requirement is simply that the habeas petition must have been filed while the prisoner was “in ...


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