Cleveland v. Babeu et al

Filing 16

ORDER the Petition 1 and this action are dismissed. Petitioner's pending notices and requests, to the extent that any relief is sought therein, and his pending motions are denied as moot re [8-13]. The Clerk of Court must enter judgment accordingly and close this case. The Court declines to issue a certificate of appealability. Signed by Judge David G Campbell on 5/17/13.(TLJ)

1
2

SC

WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Christopher Lamar Cleveland,
Petitioner,

10
11

vs.

12

Paul Babeu, et al.,
Respondents.

13

)
)
)
)
)
)
)
)
)
)

No. CV 12-2685-PHX-DGC (SPL)
ORDER

14
15

On December 19, 2012, Petitioner Christopher Lamar Cleveland, who is confined in

16

the Pinal County Adult Detention Facility in Florence, Arizona, filed a pro se Petition for

17

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 regarding his Maricopa County

18

Superior Court conviction, case# CR2003-037149.1 The Court ordered Petitioner to file a

19

notice addressing whether he was “in custody” in connection with that case. (Doc. 6.)

20

Petitioner filed a notice. (Doc. 7.) Petitioner has also filed additional notices, requests, and

21

motions. (Doc. 8-13.) The Court will dismiss the Petition and this action and deny

22

Petitioner’s notices and requests, to the extent that he seeks any relief therein, and deny his

23

pending motions.

24

I.

Petition
Petitioner seeks habeas relief with respect to his conviction, pursuant to a guilty plea,

25
26
27
1

28

Petitioner subsequently filed another habeas petition. See Cleveland v. Babeu, No.
CV13-0045-PHX-DGC (SPL).

1

for failure to register as a sex offender in Maricopa County Superior Court, case #CR2003-

2

037149, for which Petitioner was sentenced to a 2.5-year term of imprisonment.2 Petitioner

3

alleges four grounds for relief. In Ground One, he appears to assert that his Thirteenth

4

Amendment rights against involuntary solitude were violated by his being required to register

5

as a sex offender under Arizona’s sex offender registration statute, Ariz. Rev. St. §13-3821,

6

based upon a 1993 California conviction; Petitioner disputes that he was actually convicted.

7

In Ground Two, Petitioner asserts that his Fifth Amendment double jeopardy rights have

8

been violated where a dismissed California state case has been used to penalize him for

9

failing to register as a sex offender. In Ground Three, Petitioner contends that Arizona has

10

violated the full faith and credit clause of the Constitution, where he was penalized for failing

11

to register as a sex offender based upon a dismissed California case. In Ground Four,

12

Petitioner asserts violation of his Fifth Amendment due process rights based where he was

13

penalized for failure to register as a sex offender based upon a false conviction.

14

II.

The “In Custody” Requirement of § 2254

15

Federal habeas relief is available “only on the ground that [an inmate] is in custody

16

in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

17

The United States Supreme Court has interpreted “the statutory language as requiring that

18

the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the

19

time his petition is filed,” although he need not be physically confined to challenge a sentence

20

on habeas corpus. Maleng v. Cook, 490 U.S. 488, 491 (1989) (an expired conviction can

21

never satisfy the “in custody” requirement, even if it is used to enhance a subsequent

22

sentence) (emphasis added); Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005)

23

(petitioner was “in custody” while he remained subject to probation under the conviction or

24

sentence at the time he filed his habeas petition); Fowler v. Sacramento County Sheriff’s

25

Dep’t, 421 F.3d 1027, 1033 (9th Cir. 2005).

26
27
28

2

See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/case
Info.asp?caseNumber=CR2003-037149 and http://www.courtminutes.maricopa.gov/docs/
Criminal/092003/m1123609.pdf (last visited May 9, 2013).
-2-

1

III.

Petitioner’s Notice

2

In his Notice, Petitioner states that lifetime probation was imposed in CR2003-037149

3

and that a condition of his lifetime probation was compliance with Arizona’s sex offender

4

registration law. A review of the September 30, 2003 sentencing order in Petitioner’s case,

5

available on-line, belies Petitioner’s assertion that he was sentenced to lifetime probation in

6

that case.3 The Maricopa County Superior Court sentenced Petitioner to 2.5 years in prison

7

followed by a period of community supervision under Arizona Revised Statute § 13-603(I),

8

which provided that a term of community supervision be imposed for a period equal to one

9

day for every seven days of the sentence imposed. Ariz. Rev. St. § 13-603(I). In Petitioner’s

10

case, he was subject to approximately 130 days of community supervision following his term

11

of imprisonment. Thus, even assuming that community supervision satisfied the “in custody”

12

requirement, Petitioner completed his sentence of imprisonment and community supervision

13

in CR2003-037149 no later than September 30, 2006.

14

Petitioner may in part be attempting to assert that he was “in custody” in connection

15

with CR2003-037149 because he was required to comply with Arizona’s sex offender

16

registration law. In Williamson v. Gregoire, 151 F.3d 1180, 1183-84 (9th Cir. 1998), the

17

Ninth Circuit held that a petitioner challenging Washington’s sex-offender registration law

18

did not meet the “in custody” requirement because the law did not impose a significant

19

restraint on the petitioner’s liberty, but was instead a collateral consequence of the

20

petitioner’s conviction. See Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999); cf. Fowler v.

21

Sacramento County Sheriff’s Dep’t, 421 F.3d 1027, 1033 n.5 (9th Cir. 2005) (probationary

22

term is sufficient custody to confer jurisdiction, even where probationary term expired after

23

commencement of habeas action but adverse consequences remained). In Petitioner’s case,

24

compliance with Arizona’s sex offender registration law was not required as a consequence

25

of his conviction in CR2003-037149. Rather, Petitioner admitted that he had failed to

26

comply with Arizona’s sex offender registration law based on a previous California

27
28

3

See http://www.courtminutes.maricopa.gov/docs/Criminal/102003/m1159258.pdf (last
visited May 9, 2013).
-3-

1

conviction.4 Thus, Petitioner was not required to comply with Arizona’s sex offender

2

registration law as a consequence of his conviction in CR2003-037149. Further, compliance

3

with such requirement amounts to a collateral consequence and was not a significant restraint

4

on Petitioner’s liberty. See Williamson, 151 F.3d at 1183-84; Henry, 164 F.3d at 1240.

5

Petitioner has failed to establish that he was “in custody” in connection with CR2003-

6

037149 when he commenced this habeas action. Accordingly, the Petition and this action

7

will be dismissed. The Court will deny Petitioner’s pending notices and requests, to the

8

extent that any relief is sought therein, and his pending motions as moot.

9

IT IS ORDERED:

10

(1)

The Petition and this action are dismissed. (Doc. 1.)

11

(2)

Petitioner’s pending notices and requests, to the extent that any relief is sought

12

therein, and his pending motions are denied as moot. (Doc. 8-13.)

13

(3)

The Clerk of Court must enter judgment accordingly and close this case.

14

(4)

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event

15

Petitioner files an appeal, the Court declines to issue a certificate of appealability because

16

reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v.

17

McDaniel, 529 U.S. 473, 484 (2000).
DATED this 17th day of May, 2013.

18
19
20
21
22
23
24
25
26
27
28

4

In several other cases in this Court, and in his pending criminal cases in Pinal County
Superior Court, Petitioner disputes that he was actually convicted of an offense in California
for which he must comply with Arizona’s sex offender registration law. Although unclear,
it appears proceedings in Petitioner’s pending Pinal County criminal cases have been delayed
while documentation from the California case, which dates from 1993, is sought.
-4-