Alberto Hernandez v. Kamala D. Harris et al

Filing 17

MEMORANDUM OPINION AND ORDER by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that (1) Respondent's Motion to Dismiss is granted, and (2) Judgment shall be entered dismissing this action with prejudice. (See Order for Further Details) (kl)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

9
10
11
12

ALBERTO HERNANDEZ,
Petitioner,

13
14
15
16

v.
KAMALA D. HARRIS, et al.,
Respondents.

)
)
)
)
)
)
)
)
)
)
)

Case No. CV 15-9468-JEM
MEMORANDUM OPINION AND ORDER

17
18
19
20
21
22
23
24
25
26
27
28

INTRODUCTION
On December 8, 2015, Alberto Hernandez (“Petitioner”), a federal prisoner, filed a
Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. §
2254 (“Petition”). On February 4, 2016, Respondent filed a Motion to Dismiss the Petition.
On April 14, 2016, Petitioner filed an Opposition. Respondent did not f ile a Reply. The
Motion to Dismiss is now ready for decision.
For the reasons set forth below, the Motion to Dismiss should be granted.
PROCEDURAL HISTORY
On March 16, 2001, in Los Angeles County Superior Court case number VA063323,
Petitioner pled guilty to possession for sale of cocaine base (Cal. Health & Safety Code §
11351.5). (Respondent’s Lodged Document (“LD”) 1.) On April 17, 2001, the trial court

1

sentenced Petitioner to a total state prison term of five years, but suspended the sentence

2

upon successful completion of three years of probation. (LD 2 at 4.) Petitioner did not

3

appeal. (Pet. at 2.) On December 5, 2002, the court found Petitioner in violation of

4

probation and sentenced him to five years in state prison. (LD 3.)

5

On February 2, 2010, in the United States District Court for the Central District of

6

California, case number CR 07-0202-DOC, Petitioner was sentenced to life in federal prison

7

plus 384 months. (Pet. Memo at 3; United States v. Hernandez, Case No. CR 07-0202-

8

DOC, Docket No. 1440.)

9

The instant Petition was filed on December 8, 2015.

10
11

DISCUSSION
I.

Petitioner Was Not In Custody With Respect to Los Angeles County Superior

12

Court Case Number VA063323 at the Time the Petition Was Filed.

13

Petitioner is a federal inmate who is in custody on a 2010 federal sentence and is

14

incarcerated at the United States Penitentiary in Hazelton, West Virginia. (Pet. at 1; Pet.

15

Memo. at 3.) According to Petitioner, his 2010 federal sentence was enhanced by his

16

California state-court conviction in case number VA063323. (Pet. Memo. at 3.)

17

Subject matter jurisdiction over habeas petitions exists only where, at the time the

18

petition is filed, the petitioner is “in custody” under the conviction challenged in the petition.

19

See Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Carafas v. LaVallee, 391 U.S. 234, 238

20

(1968); see also 28 U.S.C. §§ 2241(c)(3), 2254(a). A habeas petitioner does not rem ain “in

21

custody” once the sentence imposed for the conviction has “fully expired.” However, the “in

22

custody” requirement of 28 U.S.C. § 2254(a) is satisfied where a petitioner is on parole.

23

See Maleng, 490 U.S. at 491; Jones v. Cunningham, 371 U.S. 236, 237-38 (1963).

24

Here, Petitioner was sentenced to five years in state prison on December 5, 2002.

25

Even if he had served his full term, he would have been released in 2007. And by

26

operation of law, parole would have been completed, at the latest, in 2010. See Cal. Penal

27

Code § 3000 (parole not to exceed three years for first-time drug offenders such as

28

Petitioner). In any event, by February 2, 2010, Petitioner was in federal custody. (See Pet.
2

1

Memo. at 3.) Thus, the Court lacks jurisdiction over this matter and the Petition must be

2

dismissed, as Petitioner was not in state custody at the time the action was commenced.

3

See Maleng, 490 U.S. at 491.

4

II.

Petitioner Cannot Collaterally Challenge His Conviction in Case Number

5

VA063323 Even Though It May Have Been Used to Enhance His Federal

6

Sentence.

7

To the extent that Petitioner seeks relief from his federal conviction on the basis that

8

his sentence in that case was unlawfully enhanced by his conviction in case number

9

VA063323, he is precluded from obtaining relief by the rule set forth in Lackawanna County

10
11

Dist. Attorney v. Coss, 532 U.S. 394 (2001).
In Lackawanna, the Supreme Court held that “once a state conviction is no longer

12

open to direct or collateral attack in its own right because the defendant failed to pursue

13

those remedies while they were available (or because the defendant did so unsuccessfully),

14

the conviction may be regarded as conclusively valid,” and that “[i]f that conviction is later

15

used to enhance a criminal sentence, the defendant generally may not challenge the

16

enhanced sentence through a petition under § 2254 on the ground that the prior conviction

17

was unconstitutionally obtained.” Id. at 403-04. However, there is an exception to this

18

general rule where the prior conviction was obtained in violation of the Sixth Amendment

19

right to counsel under Gideon v. Wainwright, 372 U.S. 335 (1963). See Lackawanna, 532

20

U.S. at 404. The Supreme Court also left open the possibility of two other exceptions: (1)

21

where the defendant cannot be faulted for failing to obtain timely review of a constitutional

22

claim (e.g., where a state court, “without justification, refuses to rule on a constitutional

23

claim that has been properly presented to it”), and (2) where, after the time for direct or

24

collateral review has expired, the defendant obtains “compelling evidence that he is actually

25

innocent of the crime for which he was convicted, and which he could not have uncovered

26

in a timely manner.” See id. at 405. The Ninth Circuit has recognized the former example

27

as an exception to the Lackawanna bar. Dubrin v. California, 720 F.3d 1095, 1098-1100

28

(9th Cir. 2013) (recognizing exception to Lackawanna where a state court had, “‘without
3

1

justification, refuse[d] to rule on a constitutional claim that has been properly presented to

2

it’”).

3

Here, to the extent that Petitioner is not directly challenging his conviction in case

4

number VA063323, but rather is challenging his federal conviction on the basis that the

5

sentence imposed in the latter case was enhanced by the conviction in the former case, the

6

rule set forth in Lackawanna clearly precludes relief. None of the possible exceptions

7

referred to by the Court in Lackawanna apply here, as there is no claim that Petitioner was

8

completely denied the right to counsel in the prior case, no allegation or showing that any

9

state court refused to rule on any claim, and only exceedingly weak evidence of actual

10

innocence.1 Accordingly, Lackawanna bars habeas relief to the extent that Petitioner is

11

attempting to challenge the federal sentence as enhanced by his conviction in case number

12

VA063323.

13
14
15

***
Because Petitioner is not in state custody and is improperly collaterally attacking a
prior conviction, the Petition must be dismissed with prejudice.

16
17
18
19
20
21
22
23
24
25
26
27
28

1

Petitioner attempts to assert an actual innocence claim based on the alleged confession of
Antonio Calderon-Navarette that he was the owner of the drugs at issue in case number VA063323.
(Pet. Memo at 2-4; Opposition at 1-2.) However, Petitioner’s actual innocence claim does not
render the Petition justiciable in this Court. It does not appear that a petitioner may use the actual
innocence gateway set forth in Schlup v. Delo, 513 U.S. 298, 324 (1995), to challenge a prior
conviction that has been used to enhance a sentence. Tuggle v. Campbell, 26 F. App’x 56, 58 (9th
Cir. 2007). Moreover, Petitioner cannot meet the standards set forth in Schlup. As the Supreme
Court has noted, claims of actual innocence are rarely successful. Schlup v. Delo, 513 U.S. 298,
324 (1995); see also Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (noting that, “in virtually
every case, the allegation of actual innocence has been summarily rejected”). A valid claim of
actual innocence requires that a petitioner introduce new, reliable evidence, such as exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence, proving he is
factually innocent. Schlup, 513 U.S. at 324. Petitioner has failed to do so. He admits that he was
aware of Calderon-Navarette’s alleged confession in 2001, before he pled guilty in case number
VA063323 and, therefore, his evidence is not new. Moreover, even if his evidence could be
considered new, it is suspect and is not credible or reliable.

4

1
2
3

ORDER
IT IS HEREBY ORDERED that (1) Respondent’s Motion to Dismiss is granted, and
(2) Judgment shall be entered dismissing this action with prejudice.

4
5
6

DATED: April 29, 2016

/s/ John E. McDermott
JOHN E. MCDERMOTT
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5