Reyes v. Brown et al, No. 4:2010cv05795 - Document 18 (N.D. Cal. 2011)
Court Description: ORDER DENYING 10 MOTIONS FOR RECONSIDERATION; DENYING AS MOOT 17 REQUEST FOR EXTENSION OF TIME TO SEEK LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge Claudia Wilken on 10/20/2011. (ndr, COURT STAFF) (Filed on 10/20/2011)
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Reyes v. Brown et al Doc. 18 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 ALFONSO CERVANTES REYES, Nos. C 10-05643 CW (PR) C 10-05795 CW (PR) 4 Petitioner, 5 v. ORDER DENYING MOTIONS FOR RECONSIDERATION; DENYING AS MOOT REQUEST FOR EXTENSION OF TIME TO SEEK LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 6 7 8 KAMALA HARRIS, California Attorney General, J.C. HOLLAND, Warden, FCI-Ashland, Respondents. 9 / United States District Court For the Northern District of California 10 BACKGROUND 11 Petitioner filed the above two pro se petitions for a writ of 12 habeas corpus under 28 U.S.C. § 2254 challenging expired 13 convictions and sentences imposed in the Santa Clara County 14 Superior Court in 2005. On June 20, 2011, the Court dismissed the 15 petitions on the ground that it lacked jurisdiction to consider 16 Petitioner's challenges to his state convictions because Petitioner 17 no longer is in custody under either conviction. 18 Further, because it appeared that Petitioner, who currently is 19 incarcerated at the Federal Correctional Institution in Ashland, 20 Kentucky, is facing deportation proceedings, the Court found that 21 he is not in custody under the state convictions as a result of the 22 immigration consequences of those convictions. 23 Additionally, the Court determined that Petitioner cannot 24 challenge the validity of his federal immigration custody by 25 attacking his state convictions in a habeas petition under 28 26 U.S.C. § 2241. Rather, the Court explained, until a habeas 27 petitioner has successfully overturned his state conviction in an 28 action against the State, federal immigration authorities are Dockets.Justia.com 1 entitled to rely on the conviction as a basis for custody and 2 eventual deportation. 3 4 5 Based on the above, the Court dismissed the petitions and denied a certificate of appealability. Petitioner then filed a motion for reconsideration of the Order of dismissal in each of his petitions, and also filed a 7 request for a certificate of appealability from the Ninth Circuit 8 Court of Appeals. 9 Petitioner's request to proceed in forma pauperis on appeal.1 10 United States District Court For the Northern District of California 6 Ninth Circuit has not ruled yet on Petitioner's request for a 11 certificate of appealability. 12 13 The For the reasons discussed below, Petitioner's motions for reconsideration will be denied. 14 15 On September 23, 2011, this Court granted DISCUSSION Petitioner moves for reconsideration on the following grounds: 16 (1) the Court erroneously understood that Petitioner is in federal 17 custody facing deportation proceedings when, in fact, Petitioner is 18 in federal custody serving a sixteen-year sentence that was 19 enhanced by the state convictions; (2) the Court was not aware that 20 Petitioner had filed state habeas petitions attacking his state 21 convictions while he was in custody under those convictions; 22 (3) even though he was not in state custody when he filed the 23 instant petitions, he should be excepted from application of the 24 in-custody rule because the state courts refused, without 25 justification, to rule on the merits of his petitions. 26 1 27 28 Petitioner has filed a motion requesting an extension of time to apply for leave to proceed in forma pauperis on appeal. Because the Court already granted Petitioner leave to proceed in forma pauperis on appeal, the motion is DENIED as moot. 2 1 Additionally, the Court has obtained the following information 2 relevant to Petitioner's motion which Petitioner did not provide in 3 his moving papers: (1) the federal sentence he is serving was 4 imposed after Petitioner, in 2008, plead guilty in this district in 5 United States of America v. Alfonso Cervantes Reyes, Case No. CR 6 05-00516 JF; (2) Petitioner currently is pursuing an appeal of his 7 guilty plea and the sentence in that case; (3) Petitioner argues in 8 the appeal that his federal sentence should not have been enhanced 9 by the two state convictions at issue in the present petitions United States District Court For the Northern District of California 10 because the convictions are constitutionally infirm; (4) in 11 response to the appeal, the Government has argued that Petitioner 12 waived his right to appeal when he plead guilty and that he must, 13 instead, proceed by way of a motion to vacate under 28 U.S.C. 14 § 2255; (5) Petitioner's reply to the Government is due on November 15 7, 2011. 16 Case No. 10-10369. 17 See United States of America v. Alfonso Cervantes Reyes, Petitioner is correct that the newly-asserted facts that 18 he is in federal custody serving a federal sentence rather than 19 facing deportation proceedings, and that he challenged his state 20 convictions when he was in state custody, change the Court's 21 analysis concerning his challenge to his state convictions in the 22 present petitions. 23 Court's conclusion that the petitions must be dismissed remains the 24 same. 25 For the reasons discussed below, however, the In the present petitions, Petitioner brings a direct challenge 26 under 28 U.S.C. § 2254 to his expired state court convictions. 27 the Court previously determined, Petitioner cannot directly 28 challenge the validity of those convictions because they have 3 As 1 expired and, therefore, Petitioner no longer is "in custody" under 2 those convictions. 3 (per curiam). 4 meet the in-custody requirement because the state courts improperly 5 refused to rule on the merits of his state habeas challenges to the 6 convictions. 7 Supreme Court case law that discusses the in-custody requirement 8 for challenges to expired convictions used to enhance later 9 sentences. United States District Court For the Northern District of California 10 See Maleng v. Cook, 490 U.S. 443, 492 (1989) In the instant motions, Petitioner argues he does In so doing, Petitioner cites to United States Specifically, the Supreme Court has held that a petitioner 11 challenging in habeas corpus the validity of an expired conviction 12 which he maintains is being used as a predicate or enhancement to 13 his current confinement or sentence satisfies the custody 14 requirement, even if he no longer is in custody on the prior 15 conviction. 16 394, 401-02 (2001). 17 clarified that, regardless of whether the custody requirement is 18 met, concerns of easy administration and interest in promoting the 19 finality of state court criminal judgments dictate that the expired 20 conviction itself cannot be challenged in an attack upon the later 21 sentence it was used to enhance. 22 U.S. 374, 379-83 (2001) (prior state conviction cannot be 23 challenged in § 2255 motion challenging current federal sentence 24 enhanced by prior conviction); Coss, 532 U.S. at 402-03 (prior 25 state conviction cannot be challenged in § 2254 petition 26 challenging current state sentence enhanced by prior conviction). 27 // 28 // See Lackawanna County Dist. Attorney v. Coss, 532 U.S. Importantly, however, the Supreme Court has See Daniels v. United States, 532 4 1 As explained by the Supreme Court: 2 If, however, a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse. The presumption of validity that attached to the prior conviction at the time of sentencing is conclusive, and the defendant may not collaterally attack his prior conviction through a motion under § 2255. 3 4 5 6 7 Daniels, 532 U.S. at 382; see Coss, 532 U.S. at 403-04 (accord, 8 discussing collateral attack on expired conviction in § 2254 9 petition). The only exception to this rule is for a claim that the United States District Court For the Northern District of California 10 prior conviction was unconstitutional because there was a failure 11 to appoint counsel in violation of the Sixth Amendment right to 12 counsel as set forth in Gideon v. Wainwright, 372 U.S. 335 (1963). 13 See Daniels, 532 U.S. at 382; Coss, 532 U.S. at 404. 14 The Supreme Court also recognized that "there may be rare 15 cases in which no channel of review was actually available to a 16 defendant with respect to a prior conviction, due to no fault of 17 his own." Daniels, 532 U.S. at 383; see Coss, 532 U.S. at 404 (accord). In neither the Daniels nor Coss case, however, did the 18 19 circumstances require the Supreme Court to determine whether, or 20 under what circumstances, a petitioner might be able to challenge 21 on such grounds the validity of an expired conviction used to 22 enhance a current sentence. See Daniels, 532 U.S. at 383; Coss, 23 532 U.S. at 405-06. 24 Petitioner relies upon the Supreme Court's statement 25 concerning a possible "rare cases" exception to argue that 26 reconsideration should be granted to allow him to show that he 27 satisfies the in-custody requirement to challenge his expired 28 5 1 convictions in the present § 2254 petitions because the state 2 courts improperly failed to consider his state habeas challenges to 3 those convictions while Petitioner still was in custody on them. 4 This argument is unavailing for two reasons. First, 5 Petitioner can meet the in-custody requirement to challenge his 6 expired state convictions only if he is challenging their use to 7 enhance his current federal sentence. 8 petitions Petitioner is not challenging the enhancement of his 9 federal sentence by the alleged invalid state convictions, nor can As noted, in the instant United States District Court For the Northern District of California 10 he do so. 11 a direct or collateral challenge to his federal sentence. 12 Accordingly, Petitioner must bring any such challenge in Second, the "rare cases" exception that might allow review of 13 an expired state conviction because the state courts improperly 14 rejected a challenge to that conviction does not go to the question 15 of custody. 16 Coss, such exception is relevant to the question of the proper 17 weight to be given to the state court criminal judgment relied upon 18 to enhance the current sentence. 19 Petitioner argues that the state courts improperly rejected his 20 state habeas challenges to his expired convictions, Petitioner must 21 raise such argument in the court reviewing his challenge to his 22 federal sentence. 23 Rather, as the Supreme Court explained in Daniels and Accordingly, to the extent Based on the above, the Court concludes that Petitioner is not 24 entitled to reconsideration because he does not meet the custody 25 requirement for challenging his expired state convictions in § 2254 26 petitions that seek only to invalidate those convictions. 27 Petitioner may be able to meet the custody requirement by 28 challenging the use of the expired state convictions to enhance his 6 Instead, 1 current federal sentence, which he must do by way of a direct or 2 collateral challenge to that sentence. 3 Accordingly, the motions for reconsideration are DENIED. 4 This Order terminates Docket no. 10 (Motion for 5 Reconsideration) in Case No. 10-05643 CW (PR), and Docket Nos. 10 6 (Motion for Reconsideration) and 17 (Motion for Extension of Time 7 to File In Forma Pauperis Application) in Case No. 10-05795. 8 IT IS SO ORDERED. 9 Dated: 10/20/2011 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 ALFONSO C REYES, Case Number: CV10-05643 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 JERRY BROWN et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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 October 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. 13 14 15 16 17 18 Alfonso Cervantes Reyes 10337-111 Federal Correctional Institution - Ashland P.O. Box 6001 Ashland, KY 41105 Dated: October 20, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 8
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