Opinion
A04-0203 CV (RRB), No. 9.
March 10, 2005
REPORT AND RECOMMENDATION STATE OF ALASKA'S MOTION TO DISMISS FOR FAILURE TO STATE A COGNIZABLE CLAIM AGAINST ATTORNEY GENERAL GREG RENKES
The court has now before it a motion by the State of Alaska to dismiss claims asserted against respondent Alaska Attorney General Greg Renkes in this "Petition for Review of Denial of Naturalization and Petition for Writ of Habeas Corpus". (Docket No. 9). Said motion is opposed by the petitioner, Jose Romulo Reyes Barbaza. (Docket No. 11). The State of Alaska filed a reply at docket No. 13. Oral argument has not been requested and is not deemed necessary to the disposition of the motion. For the reasons that follow the State of Alaska's motion to dismiss should be granted.
The Court takes judicial notice that Greg Renkes is no longer the Alaska Attorney General. The relief sought, however, (writ of habeas corpus) is not dependent on who occupies the office of Alaska Attorney General.
BACKGROUND
On September 19, 2000, the State of Alaska served a summons on a roommate of Mr. Barbaza's. The summons was for Mr. Barbaza to appear in court, and he did so on September 26, 2000. Mr. Barbaza is from the Phillipines. The alleged victim of his crime served as his interpreter at the court proceedings. At the proceedings the alleged victim told the state court magistrate that she wanted to drop the case and did not want Mr. Barbaza to go to jail. The magistrate explained to the victim that the state, not her, was bringing the charge, and that by following the prosecutor's recommendation of a sentence of 30 days with 30 days suspended, a $50 fine and one year of probation, Barbaza would not have to go to jail so long as he was not convicted of another offense while on probation. The magistrate, through the victim/interpreter advised Barbaza of his rights. Barbaza pled no contest to the crime of "Interfering with Report of Crime Involving Domestic Violence" in violation of AS 11.56.745, a class A misdemeanor. No factual finding was made to serve as a basis for the plea.
Mr. Barbaza was also charged by the City of Fairbanks for which a summons had issued. The charge was for domestic assault, which was the underlying charge that led to the State of Alaska charge of interfering with the report of a crime involving domestic violence. This complaint was sworn by the accusing officer on August 15, 2000, for an assault that allegedly occurred on August 18, 2000. Barbaza claims through his petition that he never learned of this charge because the summons was never served on him and the City of Fairbanks dismissed the charge on March 6, 2001.
On August 20, 2002, Barbaza filed an N-400 Naturalization Application for U.S. Citizenship. That application was eventually denied for the first time on September 30, 2003. As part of that process, on January 7, 2003, Barbaza was interviewed by Mr. Terry Charbonneau of the United States Citizenship and Immigration Services, and approval was recommended. He was also given a continuance and told to produce arrest records, and court disposition records. Subsequently, Barbaza engaged counsel to assist him in his attempt to obtain citizenship.
Barbaza's attorney obtained and produced the records to the Immigration Service. This included an explanation of the circumstances surrounding Barbaza's previously discussed conviction.
On January 27, 2003, Barbaza, through his attorney, filed a motion to withdraw his plea in the case for which he was convicted of interfering with the report of a crime involving domestic violence. On September 10, 2003, the magistrate issued an order denying Barbaza's motion to withdraw his plea on the basis that the motion was barred by the two year statute of limitations at AS 12.72.020(a)(3)(A). In his decision the magistrate admitted that it was a mistake to use the alleged victim as an interpreter. Yet, the magistrate rationalized the decision to allow the procedure by noting that the alleged victim appeared to be more Barbaza's advocate than his victim, and because it appeared the parities wanted a speedy resolution of the matter.
Barbaza did not appeal the denial of his motion to withdraw plea within the state court system. He did request a hearing on the denial of his citizenship. A hearing was held before Mr. Charbonneau. A second denial of Barbaza's citizenship application dated May 12, 2004, was mailed to him on May 28, 2004. On September 9, 2004, within one year of the state magistrate's denial of his motion to withdraw plea, Barbaza filed the instant petition for writ of habeas corpus together with a petition for de novo review of the denial of his naturalization application.
DISCUSSION
In the first half (count one) of his petition, Barbaza alleges the federal respondents improperly denied his application for citizenship. Barbaza does not contest the State of Alaska's contention that count one should be dismissed as to the state respondent because the allegations therein relate only to the federal respondents. In the second half of his petition (count two) — the count pertinent to the instant motion — Barbaza incorporates a petition for writ of habeas corpus, seeking relief from the criminal conviction entered against him by the Fairbanks District Court of the State of Alaska on September 26, 2000. The State of Alaska's motion to dismiss is based on three grounds: (1) Barbaza's petition is barred by one year statute of limitation of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) as codified at 28 U.S.C. § 2254; (2) Barbaza failed to exhaust his state court remedies; and, (3) Barbaza is not "a person in custody" within the meaning of "federal habeas law". The grounds shall be taken up in order.
I THE STATUTE OF LIMITATIONS
There is a one year limitations period for federal habeas petitions filed after April 24, 1996. 28 U.S.C. § 2244(d)(1). Barbaza's petition was filed on September 9, 2004. Under Alaska Appellate Rule 217, Barbaza had 15 days from the date shown on the clerk's certificate of distribution in which to appeal his judgment of conviction. That time expired on October 19, 2000. Barbaza never appealed his conviction. Pursuant to Section 2244(d)(1)(A) a petition for habeas relief must be filed within one year of the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
Barbaza contends that the statute of limitations does not bar his petition because he "was perfectly reasonable and legally justified in not filing a Habeas petition until he knew the conviction could not be vacated through the state court, and 2) His citizenship was denied as a result of the conviction." Barbaza posits that he ultimately filed his habeas petition within one year of the magistrate's decision denying post conviction relief. Barbaza, relying on § 2244(d)(1)(D), submits in his case that the one year period ran from the date on which the factual predicate of his claim could have been discovered through due diligence. He continues: "Most likely that would be the date at which time Mr. Barbaza learned his citizenship was denied and his last resort would become the federal court. Until then he had no reason to file a habeas petition because he had no restrictions on his liberty, or he was not `in custody' for purposes of habeas jurisdiction."
This is a whimsical argument at best. Nothing in § 2244 lends support to the notion that the determination of an immigration review process would toll the its limitations period. The "factual predicate" Barbaza cites in subsection (d)(1)(D) by its plain language concerns the discovery of claims that could have been discovered in relation to an underlying judgment, not other consequences that might effect a liberty interest. Barbaza's liberty interests were impacted the moment he was convicted, sentenced, and placed on probation. The potential effect of his conviction on his citizenship application began at the moment the judgment was entered. Even if — for the sake of argument — the ultimate denial of his citizenship status did make him a person "in custody" that possibility was discoverable through due diligence at the time of his conviction. To hold otherwise would be like holding that because a person did not know he would be denied employment because of his criminal conviction the statute of limitations should not commence running until he was denied such employment.
Barbaza also opposes dismissal because § 2244(d)(2) allows tolling during the pendency of a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. Therefore, he continues, it would run counter to the policy of exhaustion of state remedies to strictly construe this provision against him while he was working with state authorities and immigration authorities with direct control over the outcome of his case. Additionally, he contends that his application for request for hearing on the decision to deny him citizenship "qualifies as other collateral review." These contentions are non sequiturs. The appeal or collateral review of a state court judgment as contemplated in § 2244 plainly has nothing to do with an effort to place state court records before an immigration hearing or the application process for such a hearing. Thus, the State of Alaska's motion should be granted on the grounds that Barbaza's claim at count two is barred by the AEDPA's statute of limitations.
II EXHAUSTION OF STATE COURT REMEDIES
Under § 2254(b)(1)(A), habeas relief may not be granted unless the petitioner demonstrates that he "has exhausted the remedies available in the courts of the State." Barbaza did not appeal his September 2000 conviction. Furthermore, Barbaza never appealed the magistrate's denial of his motion to withdraw his plea which was entered on September 10, 2003. Therefore, the State of Alaska contends, count two should be dismissed for failure to exhaust State Court claims.
Barbaza, however, argues that he does not have an obligation to exhaust state remedies if his claims are procedurally barred and further attempts to assert claims in State Court would be futile. Without providing a citation to an exact page (jump cite) Barbaza relies on Doctor v. Walters, 96 F.3d 675 (3rd. Cir. 1996) for this proposition. The court's reading of Doctor reveals that Barbaza has obviously misread it. In Doctor the Third Circuit merely sets forth the teaching of the Supreme Court when it states: "A petitioner is entitled to federal review of procedurally defaulted claims only if he can demonstrate that (1) the procedural rule was not "independent" and "adequate" or (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom." Id. at 683. The concept of independent and adequate state grounds does not translate into the sweeping rule Barbaza argues. Barbaza also relies on § 2254(b)(1)(B)[(I)] and (ii) which provide that the prerequisites to a habeas corpus petition are met if "there is an absence of available State corrective process" or circumstances exist that render such process ineffective to protect the rights of the applicant."
According to Barbaza, because the State of Alaska successfully argued in state court that he was procedurally barred under Alaska's pertinent statute of limitations from post conviction relief in State Court, the State of Alaska should be estopped from arguing Barbaza failed to exhaust his state remedies. Again, Barbaza is grossly misreading the law or attempting to stretch it to the point of, essentially, making up law. The State of Alaska's reply is directly on point. A petitioner may not avoid the exhaustion requirement simply by letting the time run on state remedies. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A petitioner may avoid the effect of his procedural default only if he can show cause for his State Court default and prejudice resulting from that default. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Finally, the is no merit whatsoever to Barbaza's argument that his motion to withdraw plea "met the policies of exhausting state remedies by giving the state the first opportunity to correct its violation of his federal constitutional rights." The State of Alaska's motion to dismiss count two should also be granted on the grounds that Barbaza failed to exhaust his State Court remedies.
III IS BARBAZA "A PERSON IN CUSTODY"?
The State of Alaska also contends that Barbaza is not a "person in custody" within the meaning of federal habeas law. The remedy of habeas corpus is available only to persons who are in custody pursuant to the judgment of a State court when the petition is filed', and it does not apply when a sentence has completely expired regardless of the collateral consequences i.e., rights to vote, hold public office, or serve as a juror. Maleng v. Cook, 490 U.S. 488, 491-492 (1989). The cases cited by Barbaza are inapposite. His sentence had long since expired when he filed the instant action, and the collateral consequences relating to his application for citizenship do not constitute being "in custody" under the statute. Ergo, the State of Alaska's motion to dismiss count two should be granted on the grounds that Barbaza is not a person "in custody" for purposes of habeas corpus relief.
IV BARBAZA'S PENDENT JURISDICTION ARGUMENT
In his opposition brief, Barbaza advances a pendent jurisdiction theory. He contends that the court has pendent jurisdiction over the habeas petition by virtue of its de novo jurisdiction over the citizenship case. This issue is readily dispensed with. The State of Alaska argues that pendent jurisdiction does not cure an invalid claim, nor does it create a claim that does not otherwise exist. This is true but misses the mark because there might well have been a valid claim had Barbaza exhausted his State Court remedies, brought this action in a timely fashion, and was in custody. Never the less, the State of Alaska does prevail on this point. The notion that the court may sometimes have pendent jurisdiction in some cases does not trump the statutory prescriptions of the AEDPA. This court does not have pendent jurisdiction over Barbaza's habeas corpus claim at count two of his petition.
CONCLUSION
For the foregoing reasons it is hereby recommended that the State of Alaska's motion to dismiss Jose Romulo Reyes Barbaza's claim against the Alaska Attorney General (Docket No. 9) be GRANTED.
Pursuant to Federal Rule of Civil Procedure 72(b), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than the close of business on March 25, 2005. The failure to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed no later than the close of business on April 7, 2005. The parties shall otherwise comply with provisions of Local Rule 12(C).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).