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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    1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dwight Neil Rhone, No. CV-12-01808-PHX-DGC Petitioner, 10 ORDER 11 v. 12 Vance Laughlin, et al., 13 Respondents. 14 15 On May 11, 2007, Dwight Neil Rhone (“Petitioner”) was indicted on charges of 16 possession of marijuana for sale and possession of drug paraphernalia. Doc. 19 at 2. 17 Petitioner was found guilty of both crimes in Maricopa County Superior Court. Id. 18 While serving his prison sentence, Petitioner was indicted in the United States District 19 Court for the District of Kansas on charges of conspiracy to distribute at least 1,000 20 kilograms of marijuana. Id. Petitioner was also convicted of this federal crime. Id. 21 On October 5, 2010, Petitioner finished his state prison term and was released by 22 the Arizona Department of Corrections, but placed immediately into federal prison to 23 serve his subsequent conviction. Id. at 2-3. He has been serving his federal sentence in 24 Washington, Mississippi since being released by Arizona. Id. at 3. On April 6, 2011, 25 Petitioner completed Arizona’s community supervision requirement. Id. Completion of 26 this requirement meant that Petitioner was unconditionally released by Arizona, though 27 he remained in federal custody. Id. 28     1 Petitioner filed a petition for a writ of habeas corpus on October 24, 2012, to 2 attack the Arizona conviction. Id. This Court referred the case to Magistrate Judge 3 James F. Metcalf (Doc. 4), who issued his Report & Recommendation (“R&R”) on 4 June 25, 2013. 5 Respondent Warden Vance Laughlin be dismissed from the case, (2) that the petition for 6 writ of habeas corpus be denied with prejudice, and (3) that the certificate of 7 appealability be denied. Id. at 9. Pursuant to Rule 72(b)(2), Petitioner has filed written 8 objections to the R&R’s recommendations. Doc. 20. Having reviewed Petitioner's 9 objections, the Court will accept Judge Metcalf's recommendations.1 10 I. Doc. 19. Judge Metcalf made three recommendations: (1) that Legal Standard. 11 A petitioner may file specific, written objections to an R&R within fourteen days 12 after being served with a copy of the R&R. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 13 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to 14 which specific objections are made. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 15 140, 149 (1985); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 16 The Court may accept, reject, or modify, in whole or in part, the findings or 17 recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1). 18 II. Petitioner’s Custody Objection. 19 Petitioner objects to the R&R’s custody recommendation, arguing that collateral 20 consequences allow him to attack the Arizona conviction. Doc. 20 at 4. The right to 21 petition for a writ of habeas corpus extends to a prisoner when “he is in custody in 22 violation of the Constitution or law or treaties of the United States.” 23 § 2241(c)(3). A petitioner must “be ‘in custody’ under the conviction or sentence under 24 attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989). 25 The custody requirement can be fulfilled even when the petitioner is not in prison if his 26 27 28 1 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. ‐ 2 ‐      1 release is “explicitly conditioned on his reporting regularly to his parole office, remaining 2 in a particular community, residence, and job, and refraining from certain activities.” Id. 3 at 491. The “in custody” requirement does not extend to a petitioner whose sentence has 4 fully expired. 5 petitioner has been released from prison and the only collateral consequence left from 6 that conviction is the lengthening of a subsequent sentence). Id. (holding that a previous conviction cannot be challenged where 7 Petitioner argues that collateral consequences — overlap of evidence between the 8 state case and federal case — place him “in custody” under the Arizona conviction. 9 Petition cites Carafas v. Lavallee, 391 U.S. 234, 236 (1968), but that decision was 10 predicated on the fact that the petitioner filed the writ while still incarcerated under the 11 sentence he sought to attack. See Maleng, 490 U.S. at 491. The Court held, after 12 petitioner had been unconditionally released, that the case was not moot because he had 13 filed the writ while in custody under the sentence he was attacking. Id. 14 In this case, Petitioner finished his Arizona prison sentence on October 5, 2010, 15 and his sentence fully expired after completing community supervision on April 6, 2011. 16 Doc. 19 at 3. The writ was filed August 24, 2012, when Petitioner was no longer under 17 Arizona’s control. Id. The claimed collateral consequence does not allow Petitioner to 18 challenge the Arizona conviction because he was not “in [Arizona] custody” under 28 19 U.S.C. § 2241. Judge Metcalf’s recommendation to dismiss the writ of habeas corpus is 20 accepted.2 21 III. Certificate of Appealability. 22 Petitioner argues that Judge Metcalf’s recommendation to deny a certificate of 23 appealability should not be accepted because Petitioner’s constitutional rights were 24 violated. Doc 20 at 5. A certificate of appealability can be issued only if petitioner has 25 “made a substantial showing of the denial of a constitutional right.” 26 § 2253(c)(2). A substantial showing, when the district court’s decision to dismiss is 27 28 2 28 U.S.C. The Court will not consider whether Respondent Vance Laughlin was properly named because the custody finding is dispositive. ‐ 3 ‐      1 based on procedure, requires that “jurists of reason would find it debatable whether the 2 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 3 (2000). “Where a plain procedural bar is present and the district court is correct to 4 invoke it to dispose of the case, a reasonable jurist could not conclude either that the 5 district court erred in dismissing the petition or that the petitioner should be allowed to 6 proceed further. In such a circumstance, no appeal would be warranted.” Id. 7 The requisite “in custody” requirement needed to attack the Arizona conviction is 8 not present, a fact with which reasonable jurists could not disagree. Accordingly, Judge 9 Metcalf’s recommendation is accepted. 10 IT IS ORDERED: 11 1. is accepted. 12 13 Magistrate Judge James F. Metcalf' s Report & Recommendation (Doc. 19) 2. Petitioner Dwight Neil Rhone’s Petition for Writ of Habeas Corpus (Doc. 1) is denied. 14 15 3. A certificate of appealability is denied. 16 4. The Clerk of Court shall terminate this action. 17 Dated this 26th day of July, 2013. 18 19 20 21 22 23 24 25 26 27 28 ‐ 4 ‐ 

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