Rhone v. Laughlin et al

Filing 21

ORDER that Magistrate Judge James F. Metcalf's 19 Report and Recommendation is accepted. Petitioner Dwight Neil Rhone's 1 Petition for Writ of Habeas Corpus is denied. A certificate of appealability is denied. The Clerk of Court shall terminate this action. Signed by Judge David G Campbell on 7/26/2013. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dwight Neil Rhone,

No. CV-12-01808-PHX-DGC

Petitioner,

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ORDER

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v.

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Vance Laughlin, et al.,

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Respondents.

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On May 11, 2007, Dwight Neil Rhone (“Petitioner”) was indicted on charges of

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possession of marijuana for sale and possession of drug paraphernalia. Doc. 19 at 2.

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Petitioner was found guilty of both crimes in Maricopa County Superior Court. Id.

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While serving his prison sentence, Petitioner was indicted in the United States District

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Court for the District of Kansas on charges of conspiracy to distribute at least 1,000

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kilograms of marijuana. Id. Petitioner was also convicted of this federal crime. Id.

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On October 5, 2010, Petitioner finished his state prison term and was released by

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the Arizona Department of Corrections, but placed immediately into federal prison to

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serve his subsequent conviction. Id. at 2-3. He has been serving his federal sentence in

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Washington, Mississippi since being released by Arizona. Id. at 3. On April 6, 2011,

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Petitioner completed Arizona’s community supervision requirement. Id. Completion of

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this requirement meant that Petitioner was unconditionally released by Arizona, though

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he remained in federal custody. Id.

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Petitioner filed a petition for a writ of habeas corpus on October 24, 2012, to

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attack the Arizona conviction. Id. This Court referred the case to Magistrate Judge

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James F. Metcalf (Doc. 4), who issued his Report & Recommendation (“R&R”) on

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June 25, 2013.

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Respondent Warden Vance Laughlin be dismissed from the case, (2) that the petition for

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writ of habeas corpus be denied with prejudice, and (3) that the certificate of

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appealability be denied. Id. at 9. Pursuant to Rule 72(b)(2), Petitioner has filed written

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objections to the R&R’s recommendations. Doc. 20. Having reviewed Petitioner's

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objections, the Court will accept Judge Metcalf's recommendations.1

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I.

Doc. 19.

Judge Metcalf made three recommendations: (1) that

Legal Standard.

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A petitioner may file specific, written objections to an R&R within fourteen days

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after being served with a copy of the R&R. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §

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636(b)(1). The Court must undertake a de novo review of those portions of the R&R to

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which specific objections are made. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S.

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140, 149 (1985); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1).

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II.

Petitioner’s Custody Objection.

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Petitioner objects to the R&R’s custody recommendation, arguing that collateral

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consequences allow him to attack the Arizona conviction. Doc. 20 at 4. The right to

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petition for a writ of habeas corpus extends to a prisoner when “he is in custody in

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violation of the Constitution or law or treaties of the United States.”

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§ 2241(c)(3). A petitioner must “be ‘in custody’ under the conviction or sentence under

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attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989).

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The custody requirement can be fulfilled even when the petitioner is not in prison if his

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28 U.S.C.

Petitioner objects to a single phrase from the R&R’s recommendation on venue
(Doc. 20 at 3), but Judge Metcalf’s venue recommendation allowed Petitioner’s claim to
proceed (see Doc. 19 at 4-5). The Court will not consider the venue objection because
the recommendation favored Petitioner.
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release is “explicitly conditioned on his reporting regularly to his parole office, remaining

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in a particular community, residence, and job, and refraining from certain activities.” Id.

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at 491. The “in custody” requirement does not extend to a petitioner whose sentence has

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fully expired.

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petitioner has been released from prison and the only collateral consequence left from

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that conviction is the lengthening of a subsequent sentence).

Id. (holding that a previous conviction cannot be challenged where

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Petitioner argues that collateral consequences — overlap of evidence between the

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state case and federal case — place him “in custody” under the Arizona conviction.

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Petition cites Carafas v. Lavallee, 391 U.S. 234, 236 (1968), but that decision was

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predicated on the fact that the petitioner filed the writ while still incarcerated under the

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sentence he sought to attack. See Maleng, 490 U.S. at 491. The Court held, after

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petitioner had been unconditionally released, that the case was not moot because he had

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filed the writ while in custody under the sentence he was attacking. Id.

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In this case, Petitioner finished his Arizona prison sentence on October 5, 2010,

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and his sentence fully expired after completing community supervision on April 6, 2011.

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Doc. 19 at 3. The writ was filed August 24, 2012, when Petitioner was no longer under

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Arizona’s control. Id. The claimed collateral consequence does not allow Petitioner to

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challenge the Arizona conviction because he was not “in [Arizona] custody” under 28

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U.S.C. § 2241. Judge Metcalf’s recommendation to dismiss the writ of habeas corpus is

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accepted.2

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III.

Certificate of Appealability.

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Petitioner argues that Judge Metcalf’s recommendation to deny a certificate of

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appealability should not be accepted because Petitioner’s constitutional rights were

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violated. Doc 20 at 5. A certificate of appealability can be issued only if petitioner has

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“made a substantial showing of the denial of a constitutional right.”

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§ 2253(c)(2). A substantial showing, when the district court’s decision to dismiss is

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28 U.S.C.

The Court will not consider whether Respondent Vance Laughlin was properly
named because the custody finding is dispositive.
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based on procedure, requires that “jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

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(2000). “Where a plain procedural bar is present and the district court is correct to

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invoke it to dispose of the case, a reasonable jurist could not conclude either that the

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district court erred in dismissing the petition or that the petitioner should be allowed to

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proceed further. In such a circumstance, no appeal would be warranted.” Id.

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The requisite “in custody” requirement needed to attack the Arizona conviction is

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not present, a fact with which reasonable jurists could not disagree. Accordingly, Judge

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Metcalf’s recommendation is accepted.

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IT IS ORDERED:

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is accepted.

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Magistrate Judge James F. Metcalf' s Report & Recommendation (Doc. 19)

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Petitioner Dwight Neil Rhone’s Petition for Writ of Habeas Corpus
(Doc. 1) is denied.

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3.

A certificate of appealability is denied.

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4.

The Clerk of Court shall terminate this action.

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Dated this 26th day of July, 2013.

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