Timberlake v. Madden
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus for Lack of Jurisdiction signed by Magistrate Judge Jeremy D. Peterson on 04/01/2019. Referred to Judge O'Neill; Objections to F&R due by 4/19/2019. (Flores, E)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PAUL EDWARD TIMBERLAKE,
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Petitioner,
v.
Case No. 1:18-cv-00466-JDP (HC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF
HABEAS CORPUS FOR LACK OF
JURISDICTION
RAYMOND MADDEN,
OBJECTIONS DUE IN 14 DAYS
Respondent.
ECF No. 1
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ORDER DIRECTING CLERK OF COURT TO
ASSIGN CASE TO DISTRICT JUDGE
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Petitioner Paul Edward Timberlake, a state prisoner without counsel, seeks a writ of
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habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The matter is before the court for
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preliminary review. Under Rule 4 of the Rules Governing Section 2254 Cases, the court must
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examine the habeas petition and order a response to the petition unless it “plainly appears” that
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the petitioner is not entitled to relief.
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Petitioner challenges the revocation of his parole that took place in 2007. However, the
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petition and its exhibits show that petitioner has already completed the twelve-month prison term
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that resulted from the revocation of his parole and that petitioner is serving a prison term that
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resulted from unrelated offenses. Petitioner does not explain how the sentence that he has already
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served affects his current custody. We recommend that the court dismiss the petition as moot and
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decline to issue a certificate of appealability.
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I.
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Background
In 2001, petitioner was convicted of shooting into an inhabited building. See ECF No. 1
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at 80. He was released from prison on parole on an unidentified date, but in 2007, petitioner’s
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parole was revoked when he allegedly strangled and threatened his mother. See id. at 20, 58, 80-
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82. Petitioner alleges that certain newly-discovered evidence shows that his mother falsely
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accused him of strangling and threatening her. See id. at 22-24, 40-43, 67.
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Petitioner has served the twelve-month prison sentence that resulted from the revocation
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of his parole in 2007. See id. at 59, 81-82. He is now in state custody because of his new, 2016
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conviction of second-degree murder and related offenses, not because of the revocation of his
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parole. See id. at 81-82; People v. Timberlake, No. F073543, 2018 WL 4002008, at *1 (Cal. Ct.
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App. Aug. 22, 2018), review denied (Oct. 31, 2018). Indeed, when petitioner sought habeas relief
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in state court, the Superior Court of California for Kern County wrote:
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The petition is moot since Petitioner is currently serving a 55 years
to life for second degree murder, possession of a loaded firearm as a
gang member, participation in a street gang and firearm and gang
enhancements as of March 30, 2016. The court notes that Petitioner
did not disclose this fact in his petition.
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ECF No. 1 at 87. Petitioner discloses in his habeas petition filed with this court the foregoing
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history of his incarceration and the fact that he is now serving a sentence for the second-degree
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murder conviction and related offenses from 2016—not the revocation of his parole in 2007; he
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does not dispute the factual account by the Superior Court of California for Kern County. See id.
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at 13, 36, 59, 81-82, 87.
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II.
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Discussion
A federal court has an independent duty to examine its jurisdiction. See Kwai Fun Wong
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v. Beebe, 732 F.3d 1030, 1036 (9th Cir. 2013). Discharging that duty requires the court to ensure
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that an actual controversy exists at every stage of litigation. See Bd. of Trs. of Glazing Health &
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Welfare Tr. v. Chambers, 903 F.3d 829, 838 (9th Cir. 2018). An actual controversy cannot exist
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when the case has become moot. See M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 857 (9th Cir.
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2014). A habeas case becomes moot when the court cannot grant “effective relief.” McCullough
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v. Graber, 726 F.3d 1057, 1059 (9th Cir. 2013). A habeas petitioner who has fully served a
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sentence cannot challenge the underlying conviction without identifying any collateral
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consequence arising from that conviction. See Spencer v. Kemna, 523 U.S. 1, 13 (1998); Garlotte
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v. Fordice, 515 U.S. 39, 45 (1995).
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Here, the petition is moot. Petitioner is serving a sentence for first-degree murder, not any
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sentence following the revocation of his parole. See Timberlake, 2018 WL 4002008, at *1.
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Petitioner has already served the prison term following the revocation of his parole; he does not
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dispute that fact. See id. at *2 (noting that petitioner was released from prison in 2009);
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ECF No. 1 at 80-82 (summarizing petitioner’s custodial history with California prison).
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Petitioner’s sentence for his second-degree murder conviction was not enhanced by the events
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related to the revocation of his parole. See Timberlake, 2018 WL 4002008 at *9. Petitioner
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alleges no collateral consequence arising from the revocation of his parole. Put another way,
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petitioner has not explained what effect a determination that revocation of his parole was
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erroneous might have now—more than ten years later after the completion of the prison term
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arising from the revocation of his parole.
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III.
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Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district
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court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;
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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases
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requires that a district court issue or deny a certificate of appealability when entering a final order
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adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d
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1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes
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“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
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standard requires the petitioner to show that “jurists of reason could disagree with the district
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court’s resolution of his constitutional claims or that jurists could conclude the issues presented
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are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord
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Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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Here, petitioner has not made a substantial showing of the denial of a constitutional right.
Thus, the court should decline to issue a certificate of appealability.
IV. Order
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The clerk is directed to assign this case to a U.S. district judge.
V.
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Findings and recommendations
The court should dismiss the petition as moot and decline to issue a certificate of
appealability.
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Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the
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United States District Court, Eastern District of California, these findings and recommendations
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are submitted to the United States District Court Judge presiding over this case. Within fourteen
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days of the service of the findings and recommendations, any party may file written objections to
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the findings and recommendations with the court and serve a copy on all parties. That document
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must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The
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presiding District Judge will then review the findings and recommendations under 28 U.S.C.
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§ 636(b)(1)(C).
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IT IS SO ORDERED.
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Dated:
April 1, 2019
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UNITED STATES MAGISTRATE JUDGE
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No. 202
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