Brown v. Baughman

Filing 23

ORDER DISMISSING CASE. Signed by Chief Magistrate Judge Joseph C. Spero on 7/25/17. (klhS, COURT STAFF) (Filed on 7/25/2017)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

KENNY M. BROWN,

9

Case No. 17-cv-01409-JCS (PR)

Petitioner,
10

v.

ORDER OF DISMISSAL

United States District Court
Northern District of California

11

DAVID BAUGHMAN,

12

Respondent.
13
14
15

INTRODUCTION

16

Petitioner, who consented to magistrate judge jurisdiction (Dkt. No. 5), seeks

17

federal habeas relief under 28 U.S.C. § 2254. The second amended petition was dismissed

18

for failure to state a claim. The third amended petition, the subject of this order, is here for

19

review under 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.
The petition will be dismissed because the Court lacks jurisdiction over it; it fails to

20
21

state a claim for relief; and it is unexhausted.
BACKGROUND

22
23

According to the petition, in 19921, in the Alameda County Superior Court,

24

petitioner pleaded no contest to a charge of forcible oral copulation, a violation of

25

California Penal Code section 288(a), consequent to which he was sentenced to ten years

26

in state prison. (Third Am. Pet. (“TAP”) at 1-2.)

27
28

1

In his prior petition, petitioner stated that he had been convicted in 2013.

In 2015 and 2017, petitioner sought but was denied relief in the state superior court.

1
2

His appeal of that denial is pending. (Id. at 3-4.)
DISCUSSION

3
4

I.

Standard of Review
This Court may entertain a petition for writ of habeas corpus “in behalf of a person

5
6

in custody pursuant to the judgment of a State court only on the ground that he is in

7

custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

8

§ 2254(a). A district court considering an application for a writ of habeas corpus shall

9

“award the writ or issue an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application that the applicant or person

11
United States District Court
Northern District of California

10

detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate

12

only where the allegations in the petition are vague or conclusory, palpably incredible, or

13

patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

14

II.

15
16

Grounds for Relief
As grounds for federal habeas relief, petitioner claims that the state legislature

“decriminalized” the conduct for which he was convicted. (TAP at 3.)

17

There are at least three reasons to dismiss the petition.

18

First, the Court lacks jurisdiction over the petition because petitioner is no longer in

19

custody for the conviction he is challenging. The federal writ of habeas corpus is only

20

available to persons “in custody” at the time the petition is filed. See 28 U.S.C.

21

§§ 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). This requirement is

22

jurisdictional. Id. A petitioner who files a habeas petition after he has fully served his

23

sentence and who is not subject to court supervision is not “in custody” for the purposes of

24

this Court’s subject matter jurisdiction and his petition is therefore properly denied. See

25

De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990).

26

The custody requirement does not mandate that a prisoner be physically confined.

27

Maleng v. Cook, 490 U.S. 488, 491 (1989). A petitioner who is on parole at the time of

28

filing is considered to be in custody, see Jones v. Cunningham, 371 U.S. 236, 241–43
2

1

(1963) and Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on

2

probation, see Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). Custody is found

3

where the sentence imposed significantly restrains petitioner’s liberty, see, e.g., Dow v.

4

Circuit Court, 995 F.2d 922, 923 (9th Cir. 1993) (sentence of mandatory attendance to

5

fourteen-hour alcohol abuse rehabilitation program sufficient to place petitioner in

6

custody), but not where only a fine is imposed, see Dremann v. Francis, 828 F.2d 6, 7 (9th

7

Cir. 1987) (sentence which only imposes fine not enough to satisfy custody requirement

8

even if petitioner faces imprisonment for failure to pay).
It is now 2017, 25 years after petitioner’s 10-year sentence was imposed. Petitioner

9

must have served his sentence and therefore he cannot now be in custody for the 1992

11
United States District Court
Northern District of California

10

conviction. This fact deprives the Court of jurisdiction. Because the Court lacks

12

jurisdiction over the petition, it must be dismissed. If petitioner can somehow demonstrate

13

that he is in custody for this offense, he may move to reopen this action.

14

Second, even if the Court had jurisdiction over the petition, it would be dismissed

15

on the separate ground that it fails to state a claim for relief. Petitioner bases his request

16

for relief on his belief that the legislature decriminalized the conduct for which he was

17

convicted. He cites no support for this in his current petition. In a prior petition, he cited

18

People v. Collins, 21 Cal. 3d 208 (1978) as support. As the Court stated in its prior order,

19

Collins is inapplicable. First, Collins discussed the repeal and reinstatement of section

20

288a, the amended version of which decriminalized nonforcible oral copulation,2 not

21

section 288(a). Id. at 211. Second, Collins held that a defendant could not be sentenced if

22

“the conduct which he admitted in pleading guilty was no longer punishable at the time of

23

sentencing.” Id. at 212. At the time the defendant in Collins was sentenced, the conduct

24

to which he pleaded guilty (oral copulation with allegations of force dismissed) had been

25

decriminalized. Petitioner, in contrast, pleaded no contest to forcible oral copulation,

26

“[T]he Legislature repealed Penal Code section 288a and enacted a new section of the
same number which became effective on January 1, 1976. Although forcible oral
copulation is still proscribed under the new section, the act of oral copulation between
consenting, nonprisoner adults is not.” Collins, 21 Cal. 3d at 211.
2

27
28

3

1

which was punishable at the time of sentencing. The petition, then, fails to state a claim

2

for relief. If petitioner files an amended petition, not only must he show that the Court has

3

jurisdiction, he must also state a claim for relief.

4

Third, petitioner’s claim is unexhausted. He admits that his appeal of the superior

5

court’s denial is pending. (TAP at 4.) Prisoners in state custody who wish to challenge

6

collaterally in federal habeas proceedings either the fact or length of their confinement are

7

first required to exhaust state judicial remedies, either on direct appeal or through collateral

8

proceedings, by presenting the highest state court available with a fair opportunity to rule

9

on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C.

10

United States District Court
Northern District of California

11

§ 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-516 (1982).
Because his appeal is pending and he has not given the state supreme court an

12

opportunity to rule on the merits of his claim, the petition is unexhausted. To reopen this

13

action, petitioner must file an amended petition that (1) shows that the Court has

14

jurisdiction over the petition; (2) states a claim for relief; and (3) shows he has exhausted

15

his claim (or that he is entitled to file and then move to stay a protective petition).
CONCLUSION

16
17

The petition is DISMISSED without prejudice. Because this dismissal is without

18

prejudice, petitioner may move to reopen the action. Any motion to reopen must contain

19

an amended petition that addresses the issues of jurisdiction, stating a claim, and

20

exhaustion.

21

The Clerk shall enter judgment in favor of respondent, and close the file.

22

IT IS SO ORDERED.

23

Dated: July 25, 2017
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

24
25
26
27
28
4

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

KENNY M. BROWN,

Case No. 17-cv-01409-JCS

Plaintiff,
8
v.

CERTIFICATE OF SERVICE

9
10

DAVID BAUGHMAN,
Defendant.

United States District Court
Northern District of California

11
12
13
14
15

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on July 25, 2017, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

16
17
18

Kenny M. Brown ID: V22473
CMC-East Facility (Cell # 5134)
P.O. Box 8101
San Luis Obispo, CA 93409-8101

19
20
21

Dated: July 25, 2017

22
23

Susan Y. Soong
Clerk, United States District Court

24
25
26

By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO

27
28
5