Opinion
CASE NO. C02-1998Z
January 7, 2003
REPORT RECOMMENDATION
INTRODUCTION
Petitioner has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed an answer in which he challenges this court's jurisdiction over the petition, because petitioner is no longer "in custody" for the conviction that is the subject of the petition. The record clearly indicates that respondent is correct, and accordingly, the court recommends that the petition for a writ of habeas corpus be dismissed.
BACKGROUND
Petitioner was convicted in 1979 in King County Superior Court of first degree robbery and second degree assault. (Dkt. #6, Ex. 1). He was sentenced to 20 years' imprisonment. ( Id.) He appealed to the Washington Court of Appeals, which affirmed the judgment and sentence. ( Id., Ex. 3). His subsequent motion for review was denied by the Washington Supreme Court. ( Id., Ex. 4). The Washington Court of Appeals issued the mandate on July 10, 1981. ( Id., Ex. 5). Petitioner served the sentence for the 1979 conviction and was discharged from parole in 1994. ( Id., Ex. 2). Although petitioner completed the sentence for his 1979 offense, he is currently incarcerated pursuant to a 2001 conviction that is unrelated to his previous crime.
In 2001, petitioner filed a personal restraint petition in the Washington Court of Appeals. ( Id., Ex. 6). The court dismissed the petition as time-barred on March 28, 2001. ( Id., Ex. 7). The Washington Supreme Court denied review. ( Id., Ex. 12).
Turning to federal court, petitioner filed the instant petition for a writ of habeas corpus on October 2, 2002. (Dkt. #2). On November 26, 2002, respondent filed an answer, along with excerpts of the state court record. (Dkt. #5, 6). The matter is now ready for review.
GROUNDS FOR RELIEF
Petitioner sets forth the following grounds for relief in his habeas petition:
1. Case is a total "Obstruction of Justice," all the information connected to the case is false.
2. The Judge presiding over the case was "BIASED" and completely "PREJUDICE"[.]
3. Ineffectiveness of counsel, deliberately helped by the presiding judges [sic] lack of discretion and counsels [sic] failure to challenge the sufficiency of the evidence.
4. PROSECUTORIAL MISCONDUCT caused by OUTRAGEOUS CONDUCT [.] (Dkt. #2 at 5-6).
DISCUSSION
Respondent argues that this court lacks jurisdiction over the instant petition because petitioner is no longer in custody for the 1997 conviction that is the subject of the petition. To invoke federal habeas corpus review, the petition must be "in behalf of a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254 (a) (emphasis added). The custody requirement of section 2254 may be met even if the petitioner is not physically confined. See Jones v. Cunningham, 371 U.S. 236, 239-40 (1963). A petitioner on parole, for example, is "in custody" within the meaning of section 2254, because the parole restrictions "significantly restrain petitioner's liberty to do those things which in this country free men are entitled to do." Id. at 243. Therefore, one method of satisfying the custody requirement, if a petitioner is no longer in physical custody, is to demonstrate that a petitioner is subject to a significant restraint upon his liberty "not shared by the public generally." Id. at 240.
Petitioner does not show that he is subject to a significant restraint upon his liberty due to the 1979 offense. Rather, the motivation for his present challenge to his 22 year-old conviction appears to be that the violent nature of the conviction disqualifies him from certain sentencing options under Washington state law for his current conviction. See Dkt. #2 at 7. Thus, petitioner appears to be attacking his prior conviction because of its indirect impact on his current incarceration.
However, such a claim is generally not cognizable on habeas review. "[O]nce a state conviction 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), the conviction may be regarded as conclusively valid. . . . If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was I unconstitutionally obtained." Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-04 (2001). The only exception to this rule is when a petitioner is challenging a prior conviction on the ground that there was a complete failure to appoint counsel in that case in violation of the Sixth Amendment. Id.
Petitioner's claim does not fit within the very small exception carved out by Lackawanna for complete denial of counsel cases. His petition alleges ineffective assistance of counsel, but not denial of counsel. See Dkt. #2 at 5-6. Consequently, he may not use the instant habeas petition to challenge his 1979 conviction.
In sum, petitioner has not satisfied either of the two exceptions to the "in custody" jurisdictional requirement: He can show neither that the 1979 conviction imposes a significant restraint upon his liberty nor that the conviction was the result of a complete denial of counsel. Accordingly, the petition should be dismissed for lack of jurisdiction.
CONCLUSION
Based on the foregoing discussion, the court should dismiss petitioner's petition for lack of jurisdiction. A proposed order accompanies this Report and Recommendation.
ORDER DISMISSING § 2254 PETITION
The Court, having reviewed petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, the Report and Recommendation of the Honorable Ricardo S. Martinez, United States Magistrate Judge, and the balance of the record, does hereby find and ORDER:
(1) The Court adopts the Report and Recommendation.
(2) Petitioner's § 2254 petition (Dkt. #2) is DISMISSED for lack of jurisdiction.
(3) The Clerk is directed to send copies of this Order to petitioner, to counsel for respondent, and to Judge Martinez.
JUDGMENT IN A CIVIL ACTION
Decision by the Court. This action came under consideration before the Court. The issues have been considered and a decision has been rendered.IT IS ORDERED AND ADJUDGED the Report and Recommendation is adopted and approved and Petitioner's § 2254 petition is DISMISSED.
_______________________________________________________ UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
CHAMBERS OF UNITED STATES COURTHOUSE RICARDO S. MARTINEZ 1010 FIFTH AVE. UNITED STATES MAGISTRATE JUDGE SEATTLE, WA 98104 (206) 553-1396
January 7, 2003
TO: Otha Smiley, Pro Se Petitioner John Samson, Counsel for Respondent
FROM: RICARDO S. MARTINEZ U.S. Magistrate Judge
RE: Smiley v. Waddington Case No. C02-1998Z
Attached are copies of my Report and Recommendation, proposed Order and Judgment in the above-captioned case. The originals are being filed with the Clerk. This Report and Recommendation is not an appealable order. Any notice of appeal should not be filed until the District Judge enters judgment in this case.
Objections to the recommendation should be filed and served within 21 days of the date of this letter with copies to the Clerk for forwarding to the District Judge and to my office. Failure to file objections within the specified time waives the right to appeal any order by the District Court adopting this Report and Recommendation. In accordance with our local rules, you should note your objections for consideration on the Judge's motion calendar for the third Friday after they are filed. If no timely objections are filed, the matter will be ready for consideration by the District Judge on January 31, 2003.
Thank you for your cooperation.
Attachments RSM/csm
cc: Hon. Thomas S. Zilly