Pianka v. De La Rosa et al

Filing 9

ORDER - 1) Petitioner's First Amended Petition (Doc. 8 ) and this case are dismissed. (2) The Clerk of Court must enter judgment accordingly and close this case. (3) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the even t Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). (See document for full details). Signed by Judge David G Campbell on 3/16/15. (LAD)

1
2

SH
WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Victor Pianka,

10

No. CV 14-2445-PHX-DGC (MHB)
Petitioner,

11

v.

12

Charles De La Rosa, et al.,

ORDER

13

Respondents.

14
15

On November 4, 2014, Petitioner Victor Pianka, who is confined in the Eloy

16

Detention Center, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

17

§ 2254 an Application to Proceed In Forma Pauperis, and a Motion to Appoint Counsel.

18

On November 17, 2014, the Court denied the deficient Application to Proceed and gave

19

Petitioner 30 days to either pay the $5.00 filing fee or file a complete Application to

20

Proceed. On November 19, 2014, Petitioner paid the filing fee. In a December 17, 2014

21

Order, the Court dismissed the Petition with leave to amend because Petitioner had failed

22

to sufficiently allege that he met the “in custody” requirement of § 2254. The Court gave

23

Petitioner 30 days to file an amended petition. On January 13, 2015, Petitioner filed his

24

First Amended Petition (Doc. 8). The Court will dismiss the First Amended Petition and

25

this case.

26
27
28

1

I.

2

First Amended Petition
After pleading guilty, Petitioner was convicted in the Phoenix Municipal Court,

3

case #M-0741-44076491 of shoplifting and was sentenced to a term of imprisonment of

4

ten days, time served.2 Petitioner names Warden Charles De La Rosa as Respondent and

5

names the Arizona Attorney General as an additional Respondent. Petitioner raises nine

6

grounds for relief: (1) “Ineffective assistance of counsel in advising of immigration

7

consequences”; (2) actual innocence; (3) defense counsel coerced Petitioner into pleading

8

guilty; (4) the judges who ruled on Petitioner’s post-conviction relief petitions “used pre-

9

drafted denial decisions” and “did not actually write the decisions they submitted”; (5)

10

defense counsel had a conflict of interest in representing Petitioner; (6) the prosecution

11

did not disclose Petitioner’s criminal history to defense counsel, which led to defense

12

counsel misadvising Petitioner of the immigration consequences of Petitioner’s guilty

13

plea; (7) Petitioner’s Fourth Amendment rights were violated because he was “innocent

14

of [the] crime, so there was no reason why he should have been seized or arrested”; (8)

15

“McLaughlin Rule was violated and le[]d to a coerced guilty plea”; and (9) “Past coerced

16

guilty plea influenced [Petitioner] to plea[d] gui[lt]y again.”

17

II.

18

The “In Custody” Requirement of § 2254
Federal habeas relief under § 2254 is available “only on the ground that [an

19

inmate] is in custody in violation of the Constitution or laws or treaties of the United

20

States.” 28 U.S.C. § 2254(a). The United States Supreme Court has interpreted “the

21

statutory language as requiring that the habeas petitioner be ‘in custody’ under the

22

conviction or sentence under attack at the time his petition is filed,” although he need not

23

be physically confined to challenge a sentence on habeas corpus. Maleng v. Cook, 490

24

U.S. 488, 491 (1989) (an expired conviction can never satisfy the “in custody”

25
1

26
27

Petitioner lists the case number as 2011-902-1245, but online records reveal that
this is the citation number, rather than the case number. See
http://apps.supremecourt.az.gov/publicaccess/caselookup.aspx (last visited Feb. 26,
2015).

28

2

2015).

See http://apps.supremecourt.az.gov/publicaccess/caselookup.aspx (Feb. 26,

-2-

1

requirement, even if it is used to enhance a subsequent sentence); Chaker v. Crogan, 428

2

F.3d 1215, 1219 (9th Cir. 2005) (petitioner was “in custody” while he remained subject

3

to probation under the conviction or sentence at the time he filed his habeas petition);

4

Fowler v. Sacramento County Sheriff’s Dep’t, 421 F.3d 1027, 1033 (9th Cir. 2005). “A

5

criminal sentence – unlike the underlying convictions . . . – carries no presumption of

6

collateral consequences. Thus, a habeas [corpus] petitioner must show ‘some concrete

7

and continuing injury other than the now-ended incarceration or parole . . . if the suit is to

8

be maintained.’” Maciel v. Cate, 731 F.3d 928, 931 (9th Cir. 2013) (quoting Spencer v.

9

Kemna, 523 U.S. 1, 7 (1998)).

10

The Court lacks subject matter jurisdiction over this action because it was initiated

11

after Petitioner's sentence had fully expired. Petitioner was sentenced to time served in

12

2011. He did not initiate this action until three years later, on November 4, 2014.

13

Accordingly, he was not “in custody” with respect to his state court conviction when he

14

initiated this action.

15

Petitioner claims that he faces “previously unknown fatal immigration

16

consequences” and therefore he “continues to suffer injury even though incarceration

17

ended.” The fact that Petitioner was in federal custody when he initiated this action, and

18

is currently in federal custody, makes no difference in terms of whether the Court has

19

subject matter jurisdiction over Petitioner's challenge to his expired state sentence. “The

20

collateral consequences of [a] conviction are not themselves sufficient to render an

21

individual ‘in custody’ for the purposes of a habeas attack upon [the

22

conviction].” Maleng, 490 U.S. at 492. Moreover, the Ninth Circuit has held that the

23

immigration consequences of a state court conviction constitute collateral consequences

24

for purposes of determining whether or not subject matter jurisdiction is lacking.

25

Resendiz v. Kovenski, 416 F.3d 952, 957 (9th Cir.2005) (finding that an immigration

26

detainee facing deportation because of state conviction is not in state custody for

27

purposes of § 2254), abrogated on other grounds by Chaidez v. United States, ___ U.S.

28

___, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013). Because Petitioner has not satisfied the “in

-3-

1

custody” requirement of § 2254, the Court will dismiss the First Amended Petition and

2

this case.

3

IT IS ORDERED:

4

(1)

Petitioner’s First Amended Petition (Doc. 8) and this case are dismissed.

5

(2)

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

6

(3)

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

7

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

8

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

9

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

10

Dated this 16th day of March, 2015.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-