Kang v. Holder et al

Filing 14

ORDER granting 10 Motion to Dismiss. The Petition is DISMISSED for lack of subject matter jurisdiction. A certificate of appealability will not issue. Judgment will be entered in favor of the State and the Clerk shall close this file. The hearing scheduled for 11/19/2015 is VACATED. Signed by Judge Edward J. Davila on 11/16/2015. (ejdlc1S, COURT STAFF) (Filed on 11/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ROBERT KANG,

Case No. 5:12-cv-02776-EJD

Petitioner,
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ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS

v.
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KAMALA D. HARRIS,

Re: Dkt. No. 10

United States District Court
Northern District of California

Respondent.
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Petitioner Robert Kang (“Kang”) filed a petition for habeas corpus under 28 U.S.C. § 2254

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(the “Petition”) challenging a conviction and sentence imposed by San Francisco Superior Court

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in 2010. Respondent Kamala D. Harris, in her capacity as the California Attorney General (the

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“State”), moves to dismiss the Petition for lack of subject matter jurisdiction. See Docket Item

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No. 10. The State argues that Kang was not “in custody” at the time he filed the Petition. On this

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record, the must agree. Thus, the State’s motion will be granted and the Petition will be dismissed

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for the reasons explained below.

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I.

BACKGROUND
On October 1, 2009, Kang was charged with burglary, assault, unlawful driving or taking

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of a vehicle, possession of a controlled substance, and possession of a firearm by a felon.

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According to the Petition, Kang, while “enmeshed in the vortex of methamphetamine addiction

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. . . . engaged in an extensive and ongoing enterprise to steal vehicles from the Fillmore Center”

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in San Francisco. During one incident, Kang “maced” a security guard. After he was

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apprehended, authorities discovered methamphetamine and a revolver during a search of his

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vehicle.

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Case No.: 5:12-cv-02776-EJD
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

On May 24, 2010, Kang pled guilty to one count of unlawful driving or take of a vehicle in

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violation of California Vehicle Code § 10851(a) and one count of possession of a firearm by a

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felon in violation of California Penal Code § 12021(a)(1). He was sentenced on June 14, 2010, to

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two 16-month concurrent terms of incarceration followed by a 48-month term of parole.
During the sentencing hearing, Kang’s attorney mistakenly represented to the court that

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Kang was a United States citizen, and the probation report was corrected to reflect that statement.

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Counsel’s representation seems to have been based on several facts about Kang’s life. He “was

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born out of wedlock to a United States serviceman and an alien mother” and was ultimately

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adopted from Korea by another United States citizen. However, neither the status of his biological

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father nor that of his adoptive father was apparently sufficient to impart citizenship to Kang under

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United States District Court
Northern District of California

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immigration laws.

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Removal proceedings were initiated against Kang upon his release from state custody. He

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petitioned the superior court for a writ of coram nobis and a writ of habeas corpus. Those petitions

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were denied on August 4, 2011, and November 10, 2011, respectively. Similar petitions made to

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the California Court of Appeal and California Supreme Court were denied on December 1, 2011,

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and May 16, 2012. The instant Petition followed on May 31, 2012.

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II.

DISCUSSION
On the merits, Kang argues that his state trial counsel was ineffective for failing to identify

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and advise him of the immigration consequences that would ensue from his guilty plea. Citing

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Padilla v. Kentucky, 559 U.S. 356 (2010), Kang believes effective counsel would have negotiated

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a plea deal that was both satisfactory to the prosecution but at the same time precluded him from

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being deemed a deportable alien. In response, the State raises a procedural argument. It moves to

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dismiss the Petition because Kang is no longer in actual or constructive state custody.

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It is well-settled that a habeas petitioner challenging a state conviction must be “in custody

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pursuant to the judgment of a State court” at the time the petition is filed. 28 U.S.C. § 2254(a).

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This “in custody” requirement is jurisdictional. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010)

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(“Section 2254(a)’s ‘in custody’ requirement is jurisdictional and therefore ‘it is the first question

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Case No.: 5:12-cv-02776-EJD
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

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we must consider.’”); Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005) (observing that

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the “‘in custody’ requirement has been interpreted to mean that federal courts lack jurisdiction

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over habeas corpus petitions unless the petitioner is ‘under the conviction or sentence under attack

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at the time his petition is filed.’”). Thus, a failure to satisfy the “in custody” requirement requires

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the dismissal of a habeas petition. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir.

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1990) (“A petitioner who files a habeas petition after he has fully served his sentence and who is

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not subject to court supervision is not ‘in custody’ for the purposes of this court’s subject matter

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jurisdiction.”).
Here, Kang does not directly claim in the Petition that he was in state custody or on parole

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at the time it was filed. But in his opposition to the State’s motion, Kang indicates he was

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United States District Court
Northern District of California

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formally discharged from parole on March 25, 2012. Accordingly, it appears undisputed that

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Kang was not in custody pursuant to the state court judgment when this action was commenced on

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May 31, 2012.
In light of those circumstances, Kang argues for exceptions to the custody requirement.

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Importing equitable tolling principles that apply to a statute of limitations, Kang believes the court

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should “toll” the “in custody” requirement because he was on parole when he commenced the writ

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process in state court. In addition or as an alternative to that argument, Kang further contends that

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state trial counsel’s misstatement about his citizenship status at the sentencing hearing was the

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“functional equivalent” of a complete failure to appoint counsel in violation of the right to counsel

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recognized in Gideon v. Wainwright, 372 U.S. 335 (1963).1
These arguments are unpersuasive. As to Kang’s tolling request, the State points out that §

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2254’s statute of limitations is subject to equitable tolling because it is not jurisdictional. Lee v.

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Lampert, 653 F.3d 929, 933 (9th Cir. (“AEDPA’s statute of limitations is subject to equitable

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exceptions ‘in appropriate cases’ . . . . Because § 2244(d) is not jurisdictional, it is ‘subject to a

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In Gideon, the United States Supreme Court held that “any person haled into court, who is too
poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” 372 U.S.
at 344.
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Case No.: 5:12-cv-02776-EJD
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

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‘rebuttable presumption’ in favor ‘of equitable tolling.’”). In contrast, the “in custody”

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requirement is a jurisdictional prerequisite. Generally, jurisdictional requirements are not subject

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to equitable exceptions. See Bowles v. Russell, 551 U.S. 205, 214 (2007). As such, this court is

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unable to accept that Kang was in custody for the purposes of this Petition simply because he was

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in constructive custody at the time he commenced the writ process in state court. Other federal

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courts to have examined this issue have rejected similar arguments, and, like the petitioners in

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those cases, Kang has not cited authority holding otherwise or supporting the suggestion that an

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equal protection violation will result if tolling is not applied. See Kazyak v. Super. Ct., No. CV

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14-3781 MWF (JCG), 2015 U.S. Dist. LEXIS 1675, at *1-2 (C.D. Cal. Jan 5, 2015) (citing
Hensley v. Mun. Ct., 411 U.S. 345, 351 (1973); Dewald v. Wriggelsworth, No. 1:08-cv-906, 2012

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United States District Court
Northern District of California

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U.S. Dist. LEXIS 110002, 2012 WL 3205859 (W.D. Mich. Aug. 7, 2012)).

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With regard to the purported Gideon violation, the state court records reveal that Kang was

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not denied counsel during the criminal proceedings underlying this Petition. If anything, Kang’s

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complaint about his state trial counsel’s performance is more accurately classified as a potential

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claim for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984),

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rather than “a complete absence of counsel.” Resendiz, 416 F.3d at 959. Kang therefore cannot

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rely on this exception to the custody requirement because it arises from a “failure to appoint

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counsel for an indigent defendant,” not from appointed counsel’s deficient performance. Custis v.

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United States, 511 U.S. 485, 494 (1994).

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Kang finally requests the court construe this Petition was one for a writ of error coram

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nobis. But as he concedes in sur-reply, a petition for a writ of coram nobis “lies only to challenge

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errors occurring in the same court.” Hensley v. Mun. Ct., 453 F.2d 1252, 1252 n.2 (9th Cir.

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1972), rev’d on other grounds, 411 U.S. 345 (1973). That form of writ relief cannot be utilized in

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federal court to challenge purported errors that occurred during proceedings before the state court.

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In sum, the court concludes it lacks subject matter over Kang’s § 2254 Petition because he

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was not “in custody” pursuant to a state court judgment when it was filed. For that reason, the

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Petition must be dismissed.

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Case No.: 5:12-cv-02776-EJD
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS

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III.

ORDER
Based on the foregoing, the State’s Motion to Dismiss (Docket Item No. 5) is GRANTED.

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The Petition is DISMISSED for lack of subject matter jurisdiction.
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A certificate of appealability will not issue because the court finds that “jurists or reason”

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could not find debatable either that Kang was not in custody when he filed the § 2254 petition, or
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that this requirement was not somehow excused. See Slack v. McDaniel, 529 U.S. 473, 478
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(2000).
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Judgment will be entered in favor of the State and the Clerk shall close this file. The
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hearing scheduled for November 19, 2015, is VACATED.
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IT IS SO ORDERED.
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United States District Court
Northern District of California

Dated: November 16, 2015
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______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:12-cv-02776-EJD
ORDER GRANTING RESPONDENT’S MOTION TO DISMISS