Pagtakhan v. Foulk

Filing 21

ORDER DIRECTING PARTIES TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS MOOT (SI, COURT STAFF) (Filed on 4/12/2011) (Additional attachment(s) added on 4/13/2011: # 1 Envelope) (tf, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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MARLON E. PAGTAKHAN,

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No. C 09-5495 SI (pr)

Petitioner,
ORDER DIRECTING PARTIES TO
SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED AS
MOOT

v.
ED FOULK,
Respondent.
/

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On November 19, 2009, pro se petitioner Marlon Pagtakhan, a pretrial detainee

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involuntarily committed to Napa State Hospital pending a restoration of his competency to stand

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trial in San Mateo County Superior Court, filed a petition for writ of habeas corpus under 28

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U.S.C. § 2241. His petition indicates that he was arrested on August 11, 2007, and arraigned

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shortly thereafter on charges of multiple counts of stalking, stalking with a prior conviction for

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stalking, and making criminal threats. Before the preliminary hearing was held, Pagtakhan’s

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attorney declared a doubt about his competency. That eventually led to mental exams and a

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determination on October 24, 2007 that Pagtakhan was not competent to stand trial; he

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subsequently was committed to the California Department of Mental Health on November 16,

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2007. See Petition Exhibits, Order Of Denial in In Re: Pagtakhan, San Mateo County Superior

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Court Case Nos. MH 463328A and HC 1973.

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After reviewing the petition, the court determined that “[t]he only claims that may

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proceed here are the claims pertaining to Pagtakhan’s allegedly improper commitment to a

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mental hospital pursuant to California Penal Code § 1370.” Order of Partial Dismissal And To

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Show Cause, p. 4. The court then identified those claims as ineffective assistance of counsel,

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denial of the opportunity to cross examine witnesses (i.e., the doctors), and insufficient evidence

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to support the commitment order. Id., p. 5. Respondent has filed an answer and petitioner has

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filed a traverse.
Petitioner also has filed numerous documents with the court, although it is unclear

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precisely what relief petitioner seeks. In one document, entitled “Addendum Brief on Continued

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United States District Court
For the Northern District of California

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Barratry, Fraud, and Misrepresentation in the State Court,” petitioner appears to suggest that in

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December 2010, he was returned to San Mateo County Superior Court and new competency

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proceedings were initiated against him. Id., p. 2. If this indeed is the case, the court now must

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determine if his petition regarding his October 2007 competency proceedings has been rendered

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moot.

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Article III, § 2 of the United States Constitution requires the existence of a case or

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controversy through all stages of federal judicial proceedings. This means that throughout the

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litigation the party pursuing the action must have suffered, or be threatened with, an actual injury

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which is traceable to the responding party, and which is likely to be redressed by a favorable

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judicial decision. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).

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For instance, an incarcerated convict’s challenge to the validity of his conviction satisfies

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the case or controversy requirement because the incarceration constitutes a concrete injury

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caused by the conviction and redressable by the invalidation of the conviction. Spencer v.

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Kemna, 523 U.S. 1, 7 (1998). Once the convict’s sentence has expired, however, some concrete

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and continuing injury other than the now-ended incarceration or parole – some “collateral

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consequence” of the conviction – must exist if the suit is to be maintained and not considered

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moot. Id.

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Courts may presume that a criminal conviction has continuing collateral consequences.

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See Spencer, 523 U.S. at 8–12; see also Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985) (accepting
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as collateral consequence possibility that conviction may be used in future criminal proceeding

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to enhance sentence). But a challenge to a prison sentence becomes moot once the sentence has

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been served unless the petitioner can show that he continues to suffer collateral consequences.

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See United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999). This same rationale applies

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to a challenge to the revocation of parole if the underlying sentence has expired, see Spencer,

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523 U.S. at 14–18, or if the term imposed for violating parole has been served, see Cox v.

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McCarthy, 829 F.2d 800, 803 (9th Cir. 1987) (claim moot because petitioner cannot be released

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from term that he has already served for violating parole). Claims of detriment from the

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revocation in a future parole or sentencing proceeding, impeachment in a future criminal or civil

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United States District Court
For the Northern District of California

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proceeding, or use against the petitioner should he appear as a defendant in a future criminal

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proceeding do not constitute sufficient proof of collateral consequences. See Spencer, 523 U.S.

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at 14–16.

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Here, of course, neither a criminal conviction nor a parole revocation is at issue. But

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applying the general legal principles regarding the issue of mootness, the court finds that

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Pagtakhan’s pending challenge to his October 2007 competency proceedings – if in fact new

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competency proceedings have been initiated – is comparable to a parolee’s challenge to the

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validity of his revocation proceedings once the underlying sentence has expired or the revocation

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term has been served. That is, absent a showing of collateral consequences, Pagtakhan’s

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challenge to his October 2007 competency proceedings is moot.

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Accordingly, within fifteen (15) days of the date of this order, both parties are

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ORDERED TO SHOW CAUSE why the petition should not be dismissed as moot. The

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failure to do so will result in the dismissal of the petition with prejudice.

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IT IS SO ORDERED.

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DATED: April 12, 2011
SUSAN ILLSTON
United States District Judge

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