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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KENNY M. BROWN, 11 United States District Court Northern District of California Petitioner, Case No. 17-cv-01409-JCS (PR) 12 v. 13 DAVID BAUGHMAN, 14 ORDER DENYING MOTION TO REOPEN Respondent. 15 16 Petitioner‟s motion to reopen1 this federal habeas action (Dkt. No. 25) is DENIED 17 18 because the Court lacks jurisdiction over the matter. Through this habeas action, petitioner sought to void his 1993 state conviction for 19 20 forcible oral copulation for which he had received a sentence of ten years. In the order of 21 dismissal, the Court stated that it lacked jurisdiction over his petition because he was no 22 longer in custody for the 1993 offense, 25 years having passed since the 10-year sentence 23 was imposed. Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (“The federal habeas corpus 24 statute requires that the applicant must be „in custody‟ when the application for habeas 25 corpus is filed.”). 26 1 27 28 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. 1 In his motion to reopen, petitioner contends he is still in custody because the 1993 2 conviction was used to increase the sentence he is currently serving, which was imposed 3 for another crime. 4 This is insufficient. Petitioner is not in custody for his 1993 conviction. Rather, 5 petitioner is in custody for a later conviction, the sentence for which was increased because 6 of the 1993 conviction. This is easily demonstrated. If his later conviction were voided, 7 his sentence for that conviction, enhancements and all, would be voided as well. He could 8 not be held on the 1993 conviction, the sentence for which expired over two decades ago. 9 10 IT IS SO ORDERED. Dated: August 23, 2017 _________________________ JOSEPH C. SPERO Chief Magistrate Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 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 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. 16 17 18 19 Kenny M. Brown ID: V22473 CMC-East Facility (Cell # 5134) P.O. Box 8101 San Luis Obispo, CA 93409-8101 20 21 Dated: August 23, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ Karen Hom, Deputy Clerk to the Honorable JOSEPH C. SPERO 28 3

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