Johnson v. Swarthout

Filing 72

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 05/15/13 recommending that petitioner's application for a writ of habeas corpus be dismissed as moot. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL SAMUEL JOHNSON,

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Petitioner,

No. 11-cv-2719 TLN CKD P

vs.
GARY SWARTHOUT,
Respondent.

FINDINGS AND RECOMMENDATIONS
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Petitioner proceeds pro se with a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. (Dkt. No. 1.) At issue is the sentence imposed for a judgment of conviction

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entered against him in the Sonoma County Superior Court, case number SCR565495, for

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threatening a public officer. Petitioner claims the trial court failed to award and apply

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presentence custody credits to his three year prison sentence.

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On March 1, 2013, after changing his address of record in this case to a non-

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prison address, petitioner was ordered to show cause why his petition should not be dismissed as

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moot. Petitioner has responded to the court’s order. Petitioner contends his petition is not moot

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because he is currently serving a three year term of community supervision and the missing

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presentence custody credits can be applied to reduce his remaining term of supervision. (Dkt.

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No. 70 at 1.) Respondent has not filed a reply.
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Article III of the Constitution limits federal courts to the adjudication of actual,

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ongoing controversies between litigants. Deakins v. Monaghan, 484 U.S. 193, 199 (1988); see

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also Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (holding that federal courts “have an

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independent duty to consider” mootness sua sponte). “The case-or-controversy requirement

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demands that, through all stages of federal judicial proceedings, the parties continue to have a

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personal stake in the outcome of the lawsuit.” United States v. Verdin, 243 F.3d 1174, 1177 (9th

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Cir. 2001) (internal quotation marks and citation omitted).

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The basic question in determining mootness is “whether there is a present

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controversy as to which effective relief can be granted.” Outdoor Media Group, Inc. v. City of

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Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A case or controversy must exist throughout all

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stages of litigation. Spencer v. Kemna, 523 U.S. 1, 7 (1998). If at any time during the course of

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litigation a plaintiff ceases to suffer, or be threatened with, “an actual injury traceable to the

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defendant,” and that is “likely to be redressed by a favorable judicial decision,” the matter is

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moot. Id. at 7.

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A habeas petition becomes moot when the petitioner’s injury cannot be redressed

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by a favorable decision. Burnett, 432 F.3d at 1000-01; see also Wilson v. Terhune, 319 F.3d

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477, 479 (9th Cir. 2003), cert. denied 539 U.S. 933 (holding that in order for a suit to be

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maintained after a habeas corpus petitioner’s release from prison, “[s]ome collateral consequence

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of the conviction must exist.”) (citing Spencer, 523 U.S. at 7)). It is presumed that collateral

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consequences flow from a criminal conviction, because “once convicted, one remains forever

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subject to the prospect of harsher punishment for a subsequent offense as a result of federal and

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state laws that either already have been or may eventually be passed.” Chacon v. Wood, 36 F.3d

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1459 (9th Cir. 1994). Therefore, a prisoner’s challenge to his criminal conviction is generally not

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rendered moot by his release from custody. Id. In contrast, however, there is no presumption of

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collateral consequences in regard to an improper but completed sentence. See United States v.

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Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999).
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The Ninth Circuit has held that a federal prisoner’s challenge to the alleged

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miscalculation of his sentence and accompanying overincarceration by 16 months is not mooted

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by release from prison where the petitioner remains on supervised release and there is a

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possibility that the petitioner could receive a reduction in his term of supervised release under 18

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U.S.C. § 3583(e)(2).1 Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th Cir. 2010); see also

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Mujahid v. Daniels, 413 F.3d 991, 995 (2005) (miscalculation of federal prisoner’s good time

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credits). In other cases, the Ninth Circuit has similarly held that federal petitioners’ habeas

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petitions were not moot where they challenged the length of their sentences and where, if

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favorably resolved, they could have faced shorter terms of supervised release upon resentencing.

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See United States v. Figueroa-Ocampo, 494 F.3d 1211, 1216-17 (9th Cir. 2007) (challenge to

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length of original sentence); United States v. Allen, 434 F.3d 1166, 1170 (9th Cir. 2006) (same);

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United States v. Verdin, 243 F.3d 1174, 1178 (9th Cir 2001) (alleged sentencing error).

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Here, petitioner similarly alleges a challenge to the validity of the length of the

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sentence imposed and states that an award of presentence custody credits could reduce his

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remaining term of community supervision. However, petitioner’s case is distinguishable from

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those discussed when former federal prisoners were released to supervised release because in

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those cases there was a possibility that the sentencing courts would exercise their statutory

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discretion under 18 U.S.C. § 3583(e)(2) to reduce the term of supervised release imposed if the

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petitioners were successful. No such possibility exists for petitioner, a state prisoner.

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Community supervision is a mandatory period to be served by petitioner following

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his release from prison. See, e.g., People v. Cruz, 207 Cal.App.4th 664 (5th Dist. 2012); see also

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Cal. Penal Code §§ 3000.08(a), 3451. The Ninth Circuit has clearly stated in dicta that the

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administrative recalculation of a parolee’s sentence after the restoration of revoked conduct

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Under 28 U.S.C. § 3582(e)(2), a district court may modify, reduce, or enlarge the
conditions of a federal prisoner’s supervised release under various circumstances after
consideration of certain factors.
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credits would have no effect on his term of parole. See Nonnette v. Small, 316 F.3d 872, 875-76

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(9th Cir. 2002) (stating that in such a situation the petition would have to be dismissed for lack of

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a case or controversy “because he has fully served the period of incarceration that he is

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attacking.”). The same appears to be true with respect to petitioner’s community supervision

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term, which is separate and distinct from the prison term he has already completed serving. See

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Cal. Penal Code §§ 3000.08(a), 3451. While petitioner was in CDCR’s custody while he served

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his prison term, his current community supervision term is administered by the county. See Id.

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The administrative calculation of petitioner’s sentence by CDCR would have no affect on the

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length of his community supervision term currently being served.

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In sum, petitioner has failed to show that an award of relief would result in a

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reduction to his community supervision term, and has failed to allege collateral consequences

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flowing from the sentencing court’s failure to award presentence custody credits. The

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undersigned notes that even if petitioner is found to be in violation of his community supervision

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term, his subsequent re-incarceration would be a consequence of that new violation, not the

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earlier failure of the sentencing court in case SCR565495 to award presentence custody credits.

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Because petitioner has already served the challenged term of alleged overincarceration, there is

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no relief which this court can award. Further, the facts of this case do not fall within the

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exception for otherwise moot claims that are “capable of repetition, yet evading review,” because

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the mere possibility of repetition is too speculative and petitioner cannot demonstrate “that the

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time between [the deprivation of conduct credits] and [release from prison] is always so short as

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to evade review.” Spencer, 523 U.S. at 18.

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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for
a writ of habeas corpus be DISMISSED as moot.
These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner

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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

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court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant). Any reply to the objections shall be served and filed within fourteen days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: May 15, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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john2719.157

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