Wooten v. Kernan et al

Filing 15

ORDER denying 8 Respondent's Motion to Dismiss the Habeas Petition; rejecting 13 Report and Recommendation. Signed by Judge Anthony J. Battaglia on 11/16/2017. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
WILLIAM FRED WOOTEN,
Petitioner,

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Case No.: 17-cv-0094-AJB-WVG
ORDER: (1) REJECTING THE
REPORT AND RECOMMENDATION,
(Doc. No. 13); AND

v.
SCOTT KERNAN, et al.,
Respondents.

(2) DENYING RESPONDENT’S
MOTION TO DISMISS THE HABEAS
PETITION, (Doc. No. 8)

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Before the Court is Respondent Scott Kernan’s motion to dismiss Petitioner William

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Fred Wooten’s petition for Writ of Habeas Corpus. (Doc. No. 8.) In the Report and

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Recommendation, the Magistrate Judge recommended granting Kernan’s dismissal

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motion. (Doc. No. 13.) For the reasons stated herein, the Court REJECTS the R&R and

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DENIES Kernan’s motion to dismiss.

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I. BACKGROUND

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On January 17, 2017, William Fred Wooten filed a pro se petition for Writ of Habeas

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Corpus under 28 U.S.C. § 2254, challenging his 2014 state conviction. (Doc. No. 1.)

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Wooten was released from state prison on either December 2, 2014, or December 4, for

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time served. (Doc. No. 14 at 6 (showing the date of Wooten’s hearing as 12/2 but the date

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the judgment was signed and the sentence was pronounced on 12/4. Either way, Wooten

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was released as his “[p]re-confinement credits equal or exceed time imposed.”).) Wooten,
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however, was subject to three years of parole at the expiration of his term of imprisonment

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by statute, and was required to report to the CDCR Parole Office within 72 hours of his

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release. See Cal. Penal Code § 3000(b)(2)(B); (Doc No. 14 at 6.) Thus, Wooten is still on

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parole until at least December 2, 2017.

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Kernan’s motion to dismiss argued that Wooten’s petition should be denied for lack

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of jurisdiction. (Doc. No. 8-1 at 2.) Particularly, Kernan alleges a lack of jurisdiction

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because (1) Wooten does not meet the “in custody” requirements of § 2254, and (2)

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Wooten’s petition is now moot. (Id. at 2–4) The R&R agreed, finding the motion should

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be granted for the same jurisdictional issues. (Doc. No. 13.) Wooten objected to the R&R,

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arguing he is indeed in custody because he is on parole and that his case is not moot.

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(Doc. No. 14 at 2–3.)

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II. LEGAL STANDARDS

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“The court shall make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The “statute makes

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it clear that the district judge must review the magistrate judge’s findings and

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recommendations de novo if objection is made, but not otherwise.” United States v. Reyna–

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see Schmidt

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v. Johnstone, 263 F. Supp. 2d 1219, 1225–26 & n. 5 (D. Ariz. 2003) (applying Reyna–

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Tapia to habeas review).

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III. DISCUSSION

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As a threshold matter, the R&R suggested Wooten should have filed his petition

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under § 2255. (Doc. No. 13 at 4–5.) However, the Court finds Wooten correctly filed under

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§ 2254 because he is not attacking his federal sentence, but his state court convictions, and

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he is still in state court custody. See Daniels v. United States, 532 U.S. 374 (2001).

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A. “In Custody” Requirement Under Section 2254

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Under § 2254, “a district court shall entertain an application for a writ of habeas

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corpus on behalf of a person in custody pursuant to the judgment of a State court only on

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the ground that he is in custody in violation of the Constitution or laws or treaties of the
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United States.” 28 U.S.C. § 2254(a). Moreover, the Supreme Court has held that “once a

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conviction for a sentence has completely expired,” a petitioner is not considered “in

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custody” for purposes of filing a Petition. Maleng v. Cook, 490 U.S. 488, 492 (1989).

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Section 2254’s “in custody” requirements, however, “has not been restricted to situations

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in which the applicant is in actual, physical custody.” Jones v. Cunningham, 371 U.S. 236,

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239 (1963). In Jones, the Supreme Court held that a petitioner who is still on parole under

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a state conviction meets the “in custody” requirements of § 2254 to challenge that state

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conviction for which he or she was paroled. Id. at 243–44. For purposes of bringing a

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habeas petition, the Ninth Circuit has held that a petitioner need only be “in custody” when

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the petition was filed—which Wooten was. See Maleng, 490 U.S. at 490 (“We have

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interpreted the statutory language as requiring that the habeas petitioner be “in custody”

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under the conviction or sentence under attack at the time his petition is filed.”).

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In the present case, Wooten was released from state prison for time served on

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December 2, 2014, (or December 4), and, as stated twice on the Felony Abstract of

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Judgment form, he was ordered to report to the Parole Office. (Doc. No. 14 at 6 ¶ 4,

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(“Defendant ordered to report to local parole or probation office upon . . .”), and ¶ 8,

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(“Defendant ordered to report to the CDCR Parole Office at 765 3rd Ave, Suite 300, Chula

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Vista, CA 91942 within 72 hours.”).) Under California Penal Code § 3000(b)(2)(B), an

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inmate is released on parole for three years “at the expiration of a term of imprisonment of

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one year and one day” if his or her “crime [was] committed on or after July 1, 2013.”

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California Penal Code § 3000 applies to Wooten because he was released in 2014, and he

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committed a felony described within § 1192.7. See Cal. Penal Code §§ 3000(b), 3000.08(a).

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Accordingly, Wooten is still on parole until at least December 2, 2017.

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Thus, Wooten is still in state custody for purposes of filing a petition under § 2254

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to challenge his state court conviction, and, therefore, the Court has jurisdiction over the

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petition.

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B. Wooten’s Claim For Relief Is Not Moot

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“For a habeas petition to continue to present a live controversy, after the petitioner’s
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release . . . . . there must be some remaining ‘collateral consequence’ that may be redressed

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by success on the petition.” Abdala v. Immigration and Naturalization Service, 488 F.3d

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1061, 1064 (9th Cir. 2007). The R&R, citing Abdala, argued that the only collateral

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consequence alleged—that his state court conviction enhanced his federal sentence—is

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insufficient to challenge his state court conviction under a § 2254 petition. (Doc. No. 13 at

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6.) The R&R relies on the holding in Daniels and claims that the Supreme Court has barred

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the type of claim that Wooten asserts. (Id.)

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Daniels held that a petitioner may not use a § 2254 petition to collaterally attack

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state court convictions which have been used to enhance a federal sentence when the prior

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convictions are no longer subjected to direct or collateral review. Daniels, 532 U.S. at 380–

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85. However, Daniels does not foreclose the ability to attack a state court sentence through

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“any channels of direct or collateral review still available” to a petitioner. Id. at 382. The

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Supreme Court stated if a petitioner is “still in custody on his prior convictions,” he may

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“‘attack his state sentences [in state court] or through federal habeas review.’ If any such

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challenge to the underlying conviction is successful, the defendant may then apply for

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reopening of his federal sentence.” Id. (quoting Custis v. United States, 511 U.S. 485, 497

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(1994)). Further, the Supreme Court specified if “a prior conviction used to enhance a

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federal sentence is no longer open to direct or collateral attack in its own right because the

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defendant failed to pursue those remedies while they were available (or because the

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defendant did so unsuccessfully), then that defendant is without recourse.” Id.

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Daniels is inapplicable to Wooten’s case, however, because Wooten is still in

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custody for his state court convictions and eligible to bring a § 2254 petition. Thus, his

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petition is not moot because Wooten had a channel of review still available to him to attack

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his state court proceedings when he filed his § 2254 petition.

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IV. CONCLUSION
Thus, the Court REJECTS the R&R, (Doc. No. 13), finding that Wooten is in

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custody for § 2254 purposes and DENIES Kernan’s motion to dismiss, (Doc. No. 8.).

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IT IS SO ORDERED.
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Dated: November 16, 2017

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