(HC) Pierce v. Holifield, et al.

Filing 22

ORDER ADOPTING 19 Findings and Recommendation; ORDER DISMISSING Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Close Case; ORDER DECLINING to Issue Certificate of Appealability, signed by District Judge Ana de Alba on 09/14/2022. CLOSED CASE (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOLPHUS DWAYNE PIERCE,

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No. 1:20-cv-00459-ADA-HBK

Petitioner,
v.
ERICA HOLIFIELD, T.R. MERICKEL,

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Respondents.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS, DIRECTING CLERK OF COURT
TO CLOSE CASE, AND DECLINING TO
ISSUE CERTIFICATE OF APPEALABILITY
(Doc. No. 19)

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Petitioner Dolphus Dwayne Pierce, a state probationer represented by counsel, has

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pending a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) This

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matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

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Local Rule 302.

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On January 13, 2022, the assigned magistrate judge issued findings and recommendations

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recommending that grounds one and two of the petition be denied on the merits. (Doc. No. 19.)

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Those findings and recommendations were served on petitioner and contained notice that any

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objections thereto were to be filed within fourteen (14) days of service. (Id.) On January 24,

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2022, petitioner filed objections to the findings and recommendations. (Doc. No. 20.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a
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de novo review of the case. Having carefully reviewed the entire file, including petitioner’s

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objections, the court holds the findings and recommendations to be supported by the record and

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proper analysis.

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The court will, however, address petitioner’s objections to the findings and

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recommendations regarding the first ground of relief. The magistrate judge’s analysis correctly

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concludes that, as a method of challenging the underlying fact of conviction, petitioner’s argument

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is unavailing. Petitioner’s objections, however, specify that it is the length of sentence, not the fact

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of conviction, that is in dispute. Specifically, petitioner acknowledges he was convicted of a felony

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under California Penal Code section 182(a)(1). The question is whether the trial court was

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permitted to sentence petitioner based on a sentencing range of 2, 3, or 5 years rather a sentencing

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range of 16 months, 2 years, or 3 years. Based on this, petitioner’s argument invoking Apprendi v.

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New Jersey, 530 U.S. 466 (2000) and its progeny may have merit. This court will not, however,

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address that argument because it appears to be moot. When a petitioner challenges a sentence,

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rather than the conviction itself, the petition becomes moot when the petitioner is released from

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custody. See Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir. 1987). Here, it appears that petitioner

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was sentenced to five years of probation on September 16, 2016. That five-year probationary period

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would, therefore, have expired, at the latest, on September 16, 2021.1 While it is true that the

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existence of collateral consequences may permit a court to retain jurisdiction over a properly filed

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habeas corpus petition, see Carafas v. LaVallee, 391 U.S. 234, 237–39 (1968), “a criminal sentence

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. . . carries no presumption of collateral consequences.” Maciel v. Cate, 731 F.3d 928, 931 (9th Cir.

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2013). Here, petitioner does not allege any collateral consequences stemming from his sentence

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that relief under 28 U.S.C. 2254 would remedy.

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Having found that petitioner is not entitled to habeas relief, the court now turns to whether

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a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no

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absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only

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allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C.

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There is no indication in the record that petitioner’s probation was ever revoked, tolling the
probationary period.
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§ 2253. The court should issue a certificate of appealability if “reasonable jurists could debate

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whether (or, for that matter, agree that) the petition should have been resolved in a different

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manner or that the issues presented were ‘adequate to deserve encouragement to proceed

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further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

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880, 893 & n.4 (1983)). In the present case, the court finds that reasonable jurists would not find

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the court’s determination that the petition should be dismissed debatable or wrong, or that

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petitioner should be allowed to proceed further. Therefore, the court declines to issue a certificate

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of appealability.

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Accordingly,

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1.

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The findings and recommendations issued on January 13, 2022 (Doc. No. 19) are
adopted in full;

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The petition for writ of habeas corpus (Doc. No. 1) is denied;

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The court declines to issue a certificate of appealability; and

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The Clerk of Court is directed to close the case.

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IT IS SO ORDERED.
Dated:

September 14, 2022
UNITED STATES DISTRICT JUDGE

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