Barroca v. Sanders
Filing
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ORDER of Dismissal. Signed by Judge Edward M. Chen on 8/29/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 8/29/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ROBERT W. BARROCA,
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Petitioner,
v.
ORDER OF DISMISSAL
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For the Northern District of California
United States District Court
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No. C-12-4146 EMC (pr)
LINDA SANDERS, Warden,
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Respondent.
___________________________________/
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I.
INTRODUCTION
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Robert Barroca has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 to
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obtain relief with regard to an expired conviction that affects new criminal convictions and the
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sentences therefor. His petition is now before the Court for review pursuant to 28 U.S.C. § 2243 and
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Rule 4 of the Rules Governing Section 2254 Cases In The United States District Courts.
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II.
BACKGROUND
Barroca provides the following information in his petition for writ of habeas corpus and
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attachments thereto. In 1989, he was convicted in Contra Costa County Superior Court of assault
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with a deadly weapon and was sentenced to "three years probation including 365 days in the county
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jail." Docket # 2, p. 8. In 1994, Barroca was indicted by federal authorities on charges of being a
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felon in possession of a firearm and drug charges related to manufacturing and distributing
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methamphetamine. See United States v. Barroca, Case No. CR 94-470 JW. He was convicted of
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the felon-in-possession charge in 1996 and sentenced to 120 months. He was convicted of the drug
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offenses in 2005 and sentenced to 240 months consecutive to the felon-in-possession sentence. He
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alleges that his 1989 assault conviction was used as an element of the felon-in-possession offense
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and used to increase the length of his sentences for the felon-in-possession and drug convictions.
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Barroca currently is serving his federal sentences at the U.S. Penitentiary in Lompoc, California.
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In his federal petition, Barroca alleges three challenges to the 1989 assault with a deadly
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weapon conviction: (1) he is actually innocent of the offense, (2) he received ineffective assistance
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from the attorney who represented him in that action, and (3) the evidence was insufficient to
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support the conviction. Barroca allegedly presented these claims to the Contra Costa County
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Superior Court, the California Court of Appeal and the California Supreme Court before filing his
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federal petition. The state courts rejected his requests to set aside the 1989 conviction.
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For the Northern District of California
United States District Court
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III.
DISCUSSION
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A
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district court considering an application for a writ of habeas corpus shall "award the writ or issue an
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order directing the respondent to show cause why the writ should not be granted, unless it appears
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from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.
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The federal writ of habeas corpus is only available to persons "in custody" at the time the
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petition is filed. 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
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This requirement is jurisdictional. Id. A petitioner who files a habeas petition after he has fully
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served his sentence and who is not subject to court supervision is not "in custody" for the purposes
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of this court's subject matter jurisdiction and his petition is therefore properly dismissed. De Long v.
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Hennessey, 912 F.2d 1144, 1146 (9th Cir.), cert. denied, 489 U.S. 1001 (1990). However, a
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petitioner challenging in habeas the validity of an expired conviction which he maintains is being
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used as a predicate or enhancement to his current confinement or sentence satisfies the custody
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requirement, even if he is no longer in custody for the prior conviction. Lackawanna County Dist.
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Attorney v. Coss, 532 U.S. 394, 401-02 (2001). A challenge to an expired conviction that has been
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used to enhance a current sentence should be construed as an attack on the petitioner's current
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confinement or sentence. See id. Construing Barroca's habeas petition to be a challenge to the
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current federal convictions/sentences would avoid the custody problem, but ultimately would not
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help him for the reason explained in the next paragraph.
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"[O]nce a state conviction is no longer open to direct or collateral attack in its own right
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because the defendant failed to pursue those remedies while they were available (or because the
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defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. . . . If that
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conviction is later used to enhance a criminal sentence, the defendant generally may not challenge
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the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was
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unconstitutionally obtained." Coss, 532 U.S. at 403-04; see also Daniels v. United States, 532 U.S.
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374, 382-83 (2001) (prior conviction cannot be challenged in a § 2255 motion). The only exception
to the rule barring challenges to prior convictions used to enhance current sentences is that a
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For the Northern District of California
United States District Court
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petitioner might be able to challenge a prior conviction on the ground that there was a failure to
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appoint counsel in that case in violation of the Sixth Amendment. Coss, 532 U.S. at 404; Daniels,
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532 U.S. at 383-84. Barroca was not denied counsel in the 1989 proceedings – indeed, one of his
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claims is that the attorney who did represent him provided ineffective assistance – and therefore
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does not fit within the narrow exception to non-reviewability identified in Coss and Daniels. Those
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cases therefore preclude consideration of his claims in a federal habeas proceeding.
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Because construing the action as a challenge to his current federal convictions/sentences
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would not aid him, the court does not construe the petition to be a motion under 28 U.S.C. § 2255.
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The court therefore does not address the other problems that would be created if the petition was
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construed to be a motion under 28 U.S.C. § 2255, i.e., its apparent untimeliness and the fact that the
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court has already denied a § 2255 motion from Barroca challenging the current convictions and
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sentences. See United States v. Barroca, Case. No. CR 94-470 JW (docket # 875 (Order Dismissing
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Petitioner's Motion For Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 With Prejudice;
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Denying Certificate of Appealability)).
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A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in
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which "jurists of reason would find it debatable whether the petition states a valid claim of
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the denial of a constitutional right and that jurists of reason would find it debatable whether
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the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484
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(2000).
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IV.
CONCLUSION
For the foregoing reasons, the petition is dismissed without leave to amend. The Clerk shall
close the file.
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IT IS SO ORDERED.
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Dated: August 29, 2012
_________________________
EDWARD M. CHEN
United States District Judge
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For the Northern District of California
United States District Court
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