Opinion
2:11-cv-00854-KJD-RJJ
09-25-2012
ALBERTO CARO TORRES, Petitioner, v. D.W. NEVENS, et al., Respondents.
ORDER
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a state prisoner, is proceeding pro se. Before the court is respondents' motion to dismiss. (ECF No. 10.) Petitioner has opposed the motion (ECF No. 17), and respondents have replied (ECF No. 18.)
I. Procedural History and Background
On July 31, 2007, petitioner, Alberto Caro Torres, was convicted in the Second Judicial District Court for the State of Nevada ("District Court") in case number CR07-1407, by way of guilty plea, of one count of burglary. (Exhibits to Mot. to Dismiss Ex. 1, ECF No. 11.) Department 8 of the District Court sentenced petitioner to a term of 28 months to 72 months in the Nevada State Prison, with credit for 101 days of time served. (Id.)
On December 7, 2007, petitioner was convicted in District Court in case number CR07-0478, by way of guilty plea, of one count of assault with a deadly weapon. (Id. Ex. 2.) Department 3 of the District Court sentenced petitioner to a term of 12 to 30 months in the Nevada State Prison, with credit for 39 days of time served. (Id.) The District Court ordered the sentence in case number CR07-0478 to be served consecutively with the sentence imposed in case number CR07-1407. (Id.)
Petitioner dispatched his petition for writ of habeas corpus to this court on April 7, 2011. (ECF No. 5.) In his petition, petitioner challenges his conviction in case number CR07-1407. Respondents move to dismiss the petition, arguing that petitioner is no longer in custody for the burglary conviction from case number CR07-1407, and thus, this court lacks jurisdiction to consider the petition.
II. Custody Requirement
Federal habeas corpus law permits prisoners to challenge the validity of convictions for which they are "in custody." See 28 U.S.C. § 2254(a). Because custody is a statutory jurisdictional prerequisite, a federal district court may only consider a habeas petition if the petitioner was in custody at the time of filing the petition. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam). Custody is determined at the time the petition is filed. See Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000). The custody requirement is satisfied if the petitioner is in "custody" when the petition is filed. Carafas v. LaVallee, 391 U.S. 234, 238-39 (1968). As a general rule, a petitioner is no longer in custody for purposes of asserting federal habeas jurisdiction where the sentence imposed has fully expired prior to the filing of the federal petition. See, e.g., Maleng v. Cook, 490 U.S. 488, 492 (1989); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999). However, in Garlotte v. Fordice, 515 U.S. 39 (1995), the United States Supreme Court held that a habeas petitioner serving consecutive sentences is in custody under an earlier expired consecutive sentence until all of the consecutive sentences have expired, such that he can challenge an earlier expired consecutive sentence while serving later consecutive sentences. A court should not disaggregate a petitioner's sentences, but rather should "comprehend them as composing a continuous stream." Id. at 40.
Respondents contend that Garlotte is not applicable to this case because Garlotte is factually distinguishable and inconsistent with the principles of finality and comity underlying the Antiterrorism and Effective Dealth Penalty Act of 1996. According to respondents, unlike the petitioner in Garlotte, petitioner's sentences, here, were not aggregated for the purpose of determining parole eligibility and petitioner was sentenced by two different judges at two different times.
The court finds respondents' argument unpersuasive. Although it is an open question in the Ninth Circuit, both the Third Circuit Court of Appeals and the Tenth Circuit Court of Appeals have held that Garlotte applies to petitioners serving consecutive sentences imposed by different courts of the same sovereign at different times. DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir. 2005); Brown v. Warden, 315 F.3d 1268, 1270 (10th Cir. 2003); Foster v. Booher, 296 F.3d 947, 950 (10th Cir. 2002). In Foster, the Tenth Circuit concluded that declining to apply Garlotte to such circumstances "runs against the law of the Supreme Court." Foster, 296 F.3d at 950 (discussing Maleng v. Cook, 490 U.S. 488 (1989); Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1974); and Peyton v. Rowe, 391 U.S. 54 (1968)). In Defoy, the Third Circuit reasoned that a prisoner is required to serve the remainder of his first consecutive sentence before serving the second, and thus, "[t]he effect of any error as to the former was to delay the start of the latter." Defoy, 393 F.3d at 442. According to the Defoy court, because any remedy granted to a petitioner on the first sentence might affect his release date for the second sentence, his petition challenging the first sentence is not moot under Garlotte. Id.
Furthermore, the Foster court found that any attempt to distinguish Garlotte on its facts ignores the language in Garlotte that "sets out a clear and broad rule that [a court] must 'view consecutive sentences in the aggregate, not as discrete segments.'" Foster, 296 F.3d at 950. In sum, in Foster, the Tenth Circuit determined that "[t]here is no indication in the language of Garlotte that these principles are or should be limited to the particular facts that the Court was faced with in that case." Here, this court adopts the reasoning and the conclusion reached by the Third Circuit and the Tenth Circuit and applies Garlotte to this case, even though petitioner's sentences were imposed by two different judges at two different times. Accordingly, because petitioner is currently in state custody pursuant to a sentence imposed consecutively to the state conviction he challenges in his petition, he is "in custody." Thus, the court has jurisdiction to consider the petition and denies respondents' motion to dismiss.
III. Other Pending Motions
Petitioner moves for an order denying respondents' motion to dismiss. (ECF No. 17.) The court grants this motion, in part, because the instant order denies respondents' motion to dismiss. However, to the extent petitioner seeks a judgment on the pleadings under Fed. R. Civ. P. 12(c), the court denies the motion. As correctly stated by respondents, under Rule 5 of the Rules Governing Section 2254 cases, they are entitled to answer the merits of the petition. Because an answer is a pleading, and Fed. R. Civ. P. 12(c) only applies "[a]fter the pleadings are closed," Fed. R. Civ. P. 12(c) is inapplicable.
Petitioner also moves for the appointment of counsel. (ECF No. 9.) There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are such that denial of counsel would amount to a denial of due process, and where the petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970). The claims in this case are not especially complex, and petitioner has shown that he is capable of presenting his claims and arguments in a relatively clear and organized fashion. Therefore, it does not appear that counsel is justified in this instance.
IV. Conclusion
IT IS THEREFORE ORDERED that respondents' motion to dismiss (ECF No. 10) is DENIED.
IT IS FURTHER ORDERED that petitioner's motion for order denying respondents' motion to dismiss (ECF No. 17) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that petitioner's motion for the appointment of counsel (ECF No. 9) is DENIED.
IT IS FURTHER ORDERED that respondents shall have forty five (45) days from the date of entry of this order within which to answer the petition.
IT IS FURTHER ORDERED that petitioner shall have forty five (45) days after service of the answer to file and serve a reply
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UNITED STATES DISTRICT JUDGE