Brown v. Baughman

Filing 26

ORDER DENYING re 25 Amended Petition /Motion to Reopen filed by Kenny M. Brown. Signed by Chief Magistrate Judge Joseph C. Spero on 8/23/17. (klhS, COURT STAFF) (Filed on 8/23/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNY M. BROWN,

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United States District Court
Northern District of California

Petitioner,

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

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v.
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DAVID BAUGHMAN,

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ORDER DENYING MOTION TO
REOPEN

Respondent.
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Petitioner‟s motion to reopen1 this federal habeas action (Dkt. No. 25) is DENIED

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because the Court lacks jurisdiction over the matter.
Through this habeas action, petitioner sought to void his 1993 state conviction for

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forcible oral copulation for which he had received a sentence of ten years. In the order of

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dismissal, the Court stated that it lacked jurisdiction over his petition because he was no

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longer in custody for the 1993 offense, 25 years having passed since the 10-year sentence

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was imposed. Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (“The federal habeas corpus

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statute requires that the applicant must be „in custody‟ when the application for habeas

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corpus is filed.”).

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This action was dismissed without prejudice and judgment entered in favor of
respondent. Petitioner then filed a fourth amended petition (Dkt. No. 25), which the Court
construes as containing a motion to reopen.

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In his motion to reopen, petitioner contends he is still in custody because the 1993

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conviction was used to increase the sentence he is currently serving, which was imposed

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for another crime.

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This is insufficient. Petitioner is not in custody for his 1993 conviction. Rather,

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petitioner is in custody for a later conviction, the sentence for which was increased because

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of the 1993 conviction. This is easily demonstrated. If his later conviction were voided,

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his sentence for that conviction, enhancements and all, would be voided as well. He could

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not be held on the 1993 conviction, the sentence for which expired over two decades ago.

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IT IS SO ORDERED.
Dated: August 23, 2017
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNY M. BROWN,

Case No. 17-cv-01409-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DAVID BAUGHMAN,
Defendant.

United States District Court
Northern District of California

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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 August 23, 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.

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

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Dated: August 23, 2017

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Susan Y. Soong
Clerk, United States District Court

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

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