Reyes v. Brown et al

Filing 8

ORDER OF DISMISSAL; TERMINATING ALL PENDING MOTIONS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 6/20/2011. (ndr, COURT STAFF) (Filed on 6/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ALFONSO CERVANTES REYES,

Nos. C 10-05643 CW (PR)
C 10-05795 CW (PR)

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Petitioner,
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v.
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JERRY BROWN, California Attorney
General, J.C. HOLLAND, Warden,
FCI-Ashland,
Respondents.

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ORDER OF DISMISSAL; TERMINATING
ALL PENDING MOTIONS; DENYING
CERTIFICATE OF APPEALABILITY

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United States District Court
For the Northern District of California

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Petitioner has filed two pro se petitions for a writ of habeas
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corpus under 28 U.S.C. § 2254 challenging expired convictions and
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sentences obtained in the Santa Clara County Superior Court in
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2005.

Petitioner has paid the filing fee in both actions.

He

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currently is incarcerated at the Federal Correctional Institution
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in Ashland, Kentucky, where he apparently is facing deportation
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proceedings.
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Federal courts lack jurisdiction over habeas corpus petitions
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unless the petitioner is in custody under the conviction or
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sentence under attack at the time his petition is filed.

Maleng v.

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Cook, 490 U.S. 488, 490-91 (1989).

Here, Petitioner was not in

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State custody when he filed the instant petitions, and the
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immigration consequences of his State convictions are not enough to
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render him "in custody pursuant to the judgment of a State court"
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for purposes of § 2254.

Resendiz v. Kovensky, 416 F.3d 952, 958

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(9th Cir. 2005) (detainee facing deportation on basis of state26
court conviction not in custody pursuant to judgment of state court
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and cannot file habeas petition under § 2254).
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Therefore,

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Petitioner cannot challenge the validity of his State convictions

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under § 2254.

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Id.

Additionally, Petitioner cannot challenge the validity of his
federal custody by attacking collaterally his State court

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convictions in a habeas corpus petition under 28 U.S.C. § 2241.

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Id. at 960; see also Contreras v. Schiltgen, 122 F.3d 30, 31-32

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(9th Cir. 1997), aff'd on add'l grounds in Contrereas v. Schiltgen,

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151 F.3d 906 (9th Cir. 1998).

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successfully overturned his State conviction in an action against

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United States District Court
For the Northern District of California

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the State, federal immigration authorities are entitled to rely on

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the conviction as a basis for custody and eventual deportation.

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See Contreras, 122 F.3d at 33.

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remedy is to attack his State court conviction in State court.

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id. ("The validity of Contreras' California conviction can only be

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tested in an action against the state, which has the greatest

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interest in preserving its judgment and the best ability to either

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correct or defend it."); see also Resendiz, 416 F.3d at 960.1

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Until a habeas petitioner has

Consequently, Petitioner's sole
See

For the foregoing reasons, the instant petitions for a writ of
habeas corpus are DISMISSED.

Further, pursuant to Rule 11 of the

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Petitioner sought State habeas corpus relief to overturn the
convictions he challenges in the instant petitions but was
unsuccessful. Specifically, the computer database of the California
Appellate Courts shows that on November 17, 2010, the California
Supreme Court summarily denied Petitioner habeas relief with citations
to: In re Robbins, 18 Cal.4th 770, 780 (1998), which stands for the
proposition that the petition is untimely; People v. Villa, 45 Cal.4th
1063 (2009), which holds that a habeas petitioner who has fully served
his State sentence and is the subject of deportation proceedings is
no longer in constructive State custody for the purpose of seeking
State habeas corpus relief; and In re Wessley W., 125 Cal. App. 3d
240, 246 (1981), which holds that a habeas petitioner is not in
constructive State custody after his term of probation has expired and
criminal charges against him have been dismissed.

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Rules Governing Section 2254 Cases, a certificate of appealability

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under 28 U.S.C. § 2253(c) is DENIED because it cannot be said that

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"reasonable jurists would find the district court's assessment of

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the constitutional claims debatable or wrong."

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529 U.S. 473, 484 (2000).

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appealability from the Ninth Circuit Court of Appeals.

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Slack v. McDaniel,

Petitioner may seek a certificate of

The Clerk of the Court shall enter a judgment of dismissal

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with prejudice, terminate all pending motions in both actions and

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close the files.

United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

Dated: 6/20/2011
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ALFONSO C REYES,

Case Number: CV10-05643 CW
CV10-05795 CW

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Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JERRY BROWN et al,
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Defendant.
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United States District Court
For the 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 June 20, 2011, 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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Alfonso Cervantes Reyes 10337-111
Federal Correctional Institution - Ashland
P.O. Box 6001
Ashland, KY 41105
Dated: June 20, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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