Adrian Moon v. Maurice Junious, No. 2:2011cv10806 - Document 24 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; ORDER DENYING CERTIFICATE OF APEALABILITY by Magistrate Judge Marc L. Goldman (twdb)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 WESTERN DIVISION 7 8 9 ADRIAN MOON, 10 Petitioner, 11 v. 12 P.L. VASQUEZ, et al., 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-10806-MLG MEMORANDUM OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS; ORDER DENYING CERTIFICATE OF APEALABILITY 15 16 17 I. Background 18 On February 8, 2010, Petitioner was convicted by a Los Angeles 19 County Superior Court jury of perjury, in violation of California 20 Penal Code § 118.1 (Pet. at 2.) On August 30, 2010, Petitioner was 21 sentenced to a total term of two years in prison, sentence suspended, 22 and placed on formal probation for three years, with conditions 23 including 677 days in jail with credit for 677 days served, as well 24 as $200.00 restitution and a $30.00 special assessment. (Respondent s 25 Motion to Dismiss, App. 1, pp. 22-24.) 26 In the interim, on May 18, 2010, Petitioner was convicted of 27 nineteen counts of procuring or offering false or forged documents 28 1 Los Angeles Superior Court Case No. BA362256. 1 to be filed in a public office; six counts of attempted grand theft; 2 six counts of forgery; three counts of preparing false documentary 3 evidence; and four counts of offering into evidence forged or 4 fraudulently altered documents.2 (Cal. Penal Code §§ 115(a), 664/487, 5 470, 134, 132.) On September 9, 2010, Petitioner was sentenced to 20 6 years imprisonment3 on these thirty-eight charges.4 (Mot. to Dismiss, 7 App 3, pp. 55-80). 8 On September 9, 2010, the same date sentence was imposed on the 9 latter convictions, the trial court terminated probation in Case BA 10 332095, the perjury conviction which is the subject of the current 11 habeas corpus petition, and discharged Petitioner pursuant to Cal. 12 Penal Code § 1203.3. 13 Petitioner s appeal of the perjury conviction to the California 14 Court of Appeal was denied in a reasoned opinion on November 2, 2011. 15 People v. Moon, 2011 WL 5179593 (Cal. Ct. App. 2011). Petitioner 16 filed a petition for review in the California Supreme Court on 17 November 23, 2011, which was summarily denied on December 7, 2011. 18 (Pet. at 3.) A petition for writ of certiorari was denied by the 19 United States Supreme Court on May 14, 2012. Moon v. California, 2012 20 WL 1017454 (May 14, 2012). 21 // 22 // 23 24 25 26 27 28 2 Los Angeles Superior Court Case Nos. BA332095, BA361029. 3 On appeal, the conviction of one count was vacated and sentence was stayed on six other counts, resulting in a total sentence of 16 years, 8 months. People v. Moon, 2011 WL 6187167 (Cal. Ct. App. 2011)). 4 These convictions are the subject of a separate petition for writ of habeas corpus filed in this Court on March 21, 2012. Moon v. Vasquez, Case No. CV 12-2456-RGK (MLG). 2 1 On December 29, 2011, Petitioner filed this petition for writ 2 of habeas corpus.5 The petition was dismissed with leave to amend on 3 January 5, 2012. On February 23, 2012, Petitioner filed a first 4 amended petition, raising five grounds for relief. The petition was 5 ordered served and on April 6, 2012, Respondent filed a motion to 6 dismiss the petition for lack of jurisdiction. Petitioner did not 7 file an opposition in the time allowed. The matter is ready for 8 decision. 9 10 II. The Court Lacks Jurisdiction over the Petition Because Petitioner 11 Was Not "In Custody" under the Challenged Conviction at the Time 12 He Commenced this Action, as Required by 28 U.S.C. § 2254(a) 13 Respondent contends that the Court lacks jurisdiction to consider 14 the merits of Petitioner s habeas corpus petition because Petitioner was 15 not in custody pursuant to the judgment of a state court at the time 16 he filed this petition, as required by 28 U.S.C. § 2254(a). To obtain 17 federal habeas corpus review, 28 U.S.C. § 2254(a) requires that the 18 petitioner be in custody under the conviction or sentence under attack 19 at the time his petition is filed. Maleng v. Cook, 490 U.S. 488, 20 490-491 (1989) (per curiam); Bailey v. Hill, 599 F.3d 976, 978 79 (9th 21 Cir. 2010) (citation and quotation marks omitted), Allen v. State of 22 Oregon, 153 F.3d 1046, 1048 (9th Cir. 1998). This requirement is 23 jurisdictional. 24 specifically held that the in custody requirement is determined by 25 examining whether the petitioner was in physical custody or under some Bailey, 599 F.3d at 978. The Supreme Court has 26 27 28 5 Both parties have consented to have a magistrate judge conduct all proceedings in this case. See 28 U.S.C. § 636(c)(1). (Docket Nos. 5 and 7.) 3 1 other significant form of restraint at the time the petition was filed 2 in federal court. Maleng, 490 U.S. at 491-493. Other significant forms 3 of restraint include parole, probation, or release on bail or personal 4 recognizance. See Hensley v. Mun. Ct., 411 U.S. 345, 348 (1973); Maleng, 5 490 U.S. at 491; United States v. Spawr Optical Research Inc., 864 F.2d 6 1467, 1470 (9th Cir. 1988), cert. denied, 493 U.S. 809 (1989). Finally, 7 in defining the scope of the in custody requirement, the Supreme Court 8 has held that collateral consequences of a completely expired conviction 9 are, not themselves sufficient to render an individual in custody for 10 the purposes of a habeas attack upon it. 11 also Feldman v. Perrill, 902 F.2d 1445, 1448 (9th Cir. 1990). Maleng, 490 U.S. at 492; see 12 Here, Petitioner was sentenced to two years in prison, sentence 13 suspended, and placed on formal probation for three years, with 677 days 14 in jail and credit for 677 days on August 30, 2010. Incarceration under 15 the perjury conviction ended that day. It is undisputed that Petitioner 16 was discharged from probation on the perjury conviction on September 9, 17 2010. The discharge from probation terminated any significant restraint 18 on Petitioner arising from the perjury conviction. 19 While Petitioner is presently in state custody, his current 20 incarceration 21 distinct from the perjury conviction. His current incarceration on 22 unrelated criminal charges does not meet the in custody requirement 23 of section 2254 on the expired perjury conviction. Accordingly, it is 24 clear that Petitioner was not in custody under the state court 25 judgment being challenged within the meaning of 28 U.S.C. § 2254(a) at 26 the time he filed this petition in December 2011, and the petition must 27 be dismissed for lack of subject matter jurisdiction. 28 // is related solely to criminal charges separate and 4 1 III. Order 2 For the reasons discussed above, Respondent s motion to dismiss the 3 petition is GRANTED and this petition is DISMISSED without prejudice.6 4 In addition, because Petitioner cannot make a colorable claim that 5 jurists of reason would find debatable or wrong the decision dismissing 6 the petition for lack of jurisdiction, Petitioner is not entitled to a 7 Certificate of Appealability. Miller-El v. Cockrell, 537 U.S. 322, 338 8 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). 9 10 Dated: May 15, 2012 11 12 13 Marc L. Goldman United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 6 28 A court that lacks subject matter jurisdiction cannot dismiss a case with prejudice. Murray v. Conseco, Inc., 467 F.3d 602, 605 (7th Cir. 2006). 5
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