1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFERY LEE MOURNING, Case No.: 20-cv-0786 WQH (NLS) REPORT AND 12 Petitioner, RECOMMENDATION OF UNITED 13 v. STATES MAGISTRATE JUDGE RE: DENYING PETITION FOR WRIT 14 NEIL MCDOWELL, Warden, et. al., OF HABEAS CORPUS 15 Respondent. [ECF No. 1] 16 17 18 I. INTRODUCTION 19 Petitioner Jeffery Lee Mourning (“Petitioner”), a state prisoner proceeding pro se, 20 filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the 21 sentence accompanying his San Diego Superior Court conviction for violations of 22 California Penal Code section 594(a)(b)(1), vandalism, and California Vehicle Code 23 section 23110(b), throwing a substance at a vehicle with the intent to inflict great bodily 24 injury, in case SCD 277656. (ECF No. 1 at 1–2; ECF No. 12.) Respondent filed an 25 answer, arguing that Petitioner’s claim is not cognizable and moot, and lodged the court 26 records. (ECF No. 12; ECF No. 13 (“Lodgment”).) Petitioner had the opportunity to file 27 a traverse by October 7, 2020, (ECF No. 17 at 1) but has failed to do so. After reviewing 28 the parties’ submissions and the lodgments, and for the reasons discussed below, the 1 Court RECOMMENDS the Petition be DENIED. 2 II. FACTUAL BACKGROUND 3 On or about July 15, 2018, Petitioner threw a rock at a vehicle with the intent to 4 cause great bodily injury to an occupant of that vehicle and caused over $400 in damage 5 to real personal property that was not his own.1 (Lodgment No. 1 at 70.) 6 III. PROCEDURAL BACKGROUND 7 A. Trial Court Proceedings 8 The San Diego County District Attorney’s Office filed a complaint against 9 Petitioner on July 18, 2018. (Lodgment No. 1 at 3, 8–12.) Petitioner was charged with 10 two counts of vandalism over $400 and two counts of throwing a substance at a vehicle 11 with the intent to do great bodily injury to an occupant of the vehicle. (Id. at 8–9; Cal. 12 Penal Code § 594 (a)(b)(1); Cal. Veh. Code § 23110(b).) The prosecution also alleged 13 two prison priors within California Penal Code sections 667.5(b) and 668. (Lodgment 14 No. 1 at 11.) 15 After plea negotiations, Petitioner pled guilty on March 8, 2019, to one count of 16 vandalism over $400 and one count of throwing a rock at a vehicle with the intent to do 17 great bodily injury to an occupant of the vehicle. (Id. at 68, 155.) Petitioner also 18 admitted his prior burglary conviction from November 4, 2013. (Id. at 68.) The prior 19 conviction added a one-year enhancement to the stipulated three-year sentence, making 20 Petitioner’s total state prison sentence four years. (Id. at 102, 157.) The court sentenced 21 petitioner on April 5, 2019. (Id. at 105.) The court suspended the execution of 22 Petitioner’s prison sentence for three years, granting Petitioner formal probation. (Id. at 23 102.) Petitioner waived good conduct credits under California Penal Code section 4019, 24 and the court ordered Petitioner to spend 365 days in a residential treatment program as a 25 condition of probation. (Id. at 102, 157.) 26 On July 5, 2019, the court revoked and reinstated Petitioner’s probation after 27 28 1 Petitioner failed to report to and complete a residential treatment program. (Lodgment 2 No. 4 [RT Vol. 8 of 8] at 1103–04; see also Lodgment No. 2 at 25.) The court revoked 3 Petitioner’s probation again on October 4, 2019. (Lodgment No. 2 at 26.) Petitioner 4 admitted his probation violation on October 25, 2019, and the court imposed the four- 5 year state prison sentence. (Id. at 27.) 6 B. Direct Appeal 7 Petitioner directly appealed his sentence to the California Court of Appeal, arguing 8 that the Court of Appeal should strike the one-year prison prior enhancement. (Lodgment 9 No. 5 at 8.) Petitioner claimed Senate Bill 136, which amended California Penal Code 10 section 667.5(b) and eliminated one-year prison prior enhancements except for sexually 11 violent offenses, applies retroactively. (Id. at 8–9; Cal. Penal Code § 667.5(b); S.B. 136, 12 2019 Leg., 2019-2020 Sess. (Cal. 2019) (as chaptered).) 13 The State of California conceded that the one-year enhancement should be 14 stricken; however, Respondents asked the Court of Appeal to remand the case for 15 resentencing because the trial court could have imposed consecutive sentences. 16 (Lodgment No. 6 at 6.) Petitioner submitted a reply brief, claiming that remand for 17 resentencing was not appropriate in this case. (Lodgment No. 7 at 5–13.) 18 In an unpublished opinion, the Court of Appeal struck the one-year prison prior 19 enhancement and affirmed the remaining three-year custodial term. (Lodgment No. 8 at 20 4.) The Court did not remand the case for resentencing, recognizing that the lower court 21 had the ability to consider the dismissed counts in its decision of concurrent or 22 consecutive sentences. (Id. at 3–4.) 23 Unsatisfied with the Court of Appeal decision, Petitioner filed a subsequent 24 extraordinary writ to the Supreme Court of California on April 9, 2020. (Lodgment No. 25 9.) Petitioner essentially asserted that the State’s request to remand the case for 26 resentencing violated double jeopardy and equal protection. (Id.) Petitioner also alleged 27 that the Court of Appeal did not have jurisdiction to amend his sentence, and the 28 executive branch should have issued a directive to the California Department of 1 Corrections and Rehabilitation to strike the one-year enhancement. (Id.) 2 The Supreme Court of California denied Petitioner’s extraordinary writ because 3 Petitioner did not identify how he was entitled to remaining relief not granted by the 4 Court of Appeal. (Lodgment No. 10.) 5 C. Federal Habeas Proceedings 6 On April 27, 2020, Petitioner filed the instant federal petition for writ of habeas 7 corpus in this Court while in custody at Ironwood State Prison. (ECF No. 1 at 1.) 8 However, Petitioner was since released from state prison on July 20, 2020, and remains 9 under the supervision of the San Diego County Probation Department until July 20, 2021. 10 (ECF No. 19 at 1.) 11 IV. DISCUSSION 12 A federal habeas petition provides an avenue for individuals in custody pursuant to 13 a state court judgment to contest the legality of the custody. 28 U.S.C. § 2254(a). Thus, 14 an individual seeking relief must be both in custody and allege that the custody is illegal. 15 Id. 16 A. Petitioner Remains in Custody 17 While an individual must be in custody at the time the petition is filed, federal 18 courts retain jurisdiction even when a petitioner is released from physical incarceration. 19 See Carafas v. LaVallee, 391 U.S. 234, 237–239 (1968) (holding that although 20 petitioner’s parole had expired while seeking appellate review, consequences of the 21 conviction remained and federal courts retained jurisdiction to adjudicate the habeas 22 petition on the merits); Jones v. Cunningham, 371 U.S. 236, 242–243 (1963). In Jones, 23 the petitioner was released to the Virginia Parole Board’s supervision after filing a 24 petition for the writ of habeas corpus. 371 U.S. at 237. The Court held that the petitioner 25 remained in custody, and the district court retained jurisdiction to adjudicate the habeas 26 petition. Id. at 243. The Court reasoned that although petitioner was no longer 27 physically incarcerated, his parole significantly limited his liberty. Id. at 242–43. Thus, 28 the petitioner’s claim was not moot, and he could continue seeking a decision on the 1 merits. Id. at 244.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFERY LEE MOURNING, Case No.: 20-cv-0786 WQH (NLS) REPORT AND 12 Petitioner, RECOMMENDATION OF UNITED 13 v. STATES MAGISTRATE JUDGE RE: DENYING PETITION FOR WRIT 14 NEIL MCDOWELL, Warden, et. al., OF HABEAS CORPUS 15 Respondent. [ECF No. 1] 16 17 18 I. INTRODUCTION 19 Petitioner Jeffery Lee Mourning (“Petitioner”), a state prisoner proceeding pro se, 20 filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the 21 sentence accompanying his San Diego Superior Court conviction for violations of 22 California Penal Code section 594(a)(b)(1), vandalism, and California Vehicle Code 23 section 23110(b), throwing a substance at a vehicle with the intent to inflict great bodily 24 injury, in case SCD 277656. (ECF No. 1 at 1–2; ECF No. 12.) Respondent filed an 25 answer, arguing that Petitioner’s claim is not cognizable and moot, and lodged the court 26 records. (ECF No. 12; ECF No. 13 (“Lodgment”).) Petitioner had the opportunity to file 27 a traverse by October 7, 2020, (ECF No. 17 at 1) but has failed to do so. After reviewing 28 the parties’ submissions and the lodgments, and for the reasons discussed below, the 1 Court RECOMMENDS the Petition be DENIED. 2 II. FACTUAL BACKGROUND 3 On or about July 15, 2018, Petitioner threw a rock at a vehicle with the intent to 4 cause great bodily injury to an occupant of that vehicle and caused over $400 in damage 5 to real personal property that was not his own.1 (Lodgment No. 1 at 70.) 6 III. PROCEDURAL BACKGROUND 7 A. Trial Court Proceedings 8 The San Diego County District Attorney’s Office filed a complaint against 9 Petitioner on July 18, 2018. (Lodgment No. 1 at 3, 8–12.) Petitioner was charged with 10 two counts of vandalism over $400 and two counts of throwing a substance at a vehicle 11 with the intent to do great bodily injury to an occupant of the vehicle. (Id. at 8–9; Cal. 12 Penal Code § 594 (a)(b)(1); Cal. Veh. Code § 23110(b).) The prosecution also alleged 13 two prison priors within California Penal Code sections 667.5(b) and 668. (Lodgment 14 No. 1 at 11.) 15 After plea negotiations, Petitioner pled guilty on March 8, 2019, to one count of 16 vandalism over $400 and one count of throwing a rock at a vehicle with the intent to do 17 great bodily injury to an occupant of the vehicle. (Id. at 68, 155.) Petitioner also 18 admitted his prior burglary conviction from November 4, 2013. (Id. at 68.) The prior 19 conviction added a one-year enhancement to the stipulated three-year sentence, making 20 Petitioner’s total state prison sentence four years. (Id. at 102, 157.) The court sentenced 21 petitioner on April 5, 2019. (Id. at 105.) The court suspended the execution of 22 Petitioner’s prison sentence for three years, granting Petitioner formal probation. (Id. at 23 102.) Petitioner waived good conduct credits under California Penal Code section 4019, 24 and the court ordered Petitioner to spend 365 days in a residential treatment program as a 25 condition of probation. (Id. at 102, 157.) 26 On July 5, 2019, the court revoked and reinstated Petitioner’s probation after 27 28 1 Petitioner failed to report to and complete a residential treatment program. (Lodgment 2 No. 4 [RT Vol. 8 of 8] at 1103–04; see also Lodgment No. 2 at 25.) The court revoked 3 Petitioner’s probation again on October 4, 2019. (Lodgment No. 2 at 26.) Petitioner 4 admitted his probation violation on October 25, 2019, and the court imposed the four- 5 year state prison sentence. (Id. at 27.) 6 B. Direct Appeal 7 Petitioner directly appealed his sentence to the California Court of Appeal, arguing 8 that the Court of Appeal should strike the one-year prison prior enhancement. (Lodgment 9 No. 5 at 8.) Petitioner claimed Senate Bill 136, which amended California Penal Code 10 section 667.5(b) and eliminated one-year prison prior enhancements except for sexually 11 violent offenses, applies retroactively. (Id. at 8–9; Cal. Penal Code § 667.5(b); S.B. 136, 12 2019 Leg., 2019-2020 Sess. (Cal. 2019) (as chaptered).) 13 The State of California conceded that the one-year enhancement should be 14 stricken; however, Respondents asked the Court of Appeal to remand the case for 15 resentencing because the trial court could have imposed consecutive sentences. 16 (Lodgment No. 6 at 6.) Petitioner submitted a reply brief, claiming that remand for 17 resentencing was not appropriate in this case. (Lodgment No. 7 at 5–13.) 18 In an unpublished opinion, the Court of Appeal struck the one-year prison prior 19 enhancement and affirmed the remaining three-year custodial term. (Lodgment No. 8 at 20 4.) The Court did not remand the case for resentencing, recognizing that the lower court 21 had the ability to consider the dismissed counts in its decision of concurrent or 22 consecutive sentences. (Id. at 3–4.) 23 Unsatisfied with the Court of Appeal decision, Petitioner filed a subsequent 24 extraordinary writ to the Supreme Court of California on April 9, 2020. (Lodgment No. 25 9.) Petitioner essentially asserted that the State’s request to remand the case for 26 resentencing violated double jeopardy and equal protection. (Id.) Petitioner also alleged 27 that the Court of Appeal did not have jurisdiction to amend his sentence, and the 28 executive branch should have issued a directive to the California Department of 1 Corrections and Rehabilitation to strike the one-year enhancement. (Id.) 2 The Supreme Court of California denied Petitioner’s extraordinary writ because 3 Petitioner did not identify how he was entitled to remaining relief not granted by the 4 Court of Appeal. (Lodgment No. 10.) 5 C. Federal Habeas Proceedings 6 On April 27, 2020, Petitioner filed the instant federal petition for writ of habeas 7 corpus in this Court while in custody at Ironwood State Prison. (ECF No. 1 at 1.) 8 However, Petitioner was since released from state prison on July 20, 2020, and remains 9 under the supervision of the San Diego County Probation Department until July 20, 2021. 10 (ECF No. 19 at 1.) 11 IV. DISCUSSION 12 A federal habeas petition provides an avenue for individuals in custody pursuant to 13 a state court judgment to contest the legality of the custody. 28 U.S.C. § 2254(a). Thus, 14 an individual seeking relief must be both in custody and allege that the custody is illegal. 15 Id. 16 A. Petitioner Remains in Custody 17 While an individual must be in custody at the time the petition is filed, federal 18 courts retain jurisdiction even when a petitioner is released from physical incarceration. 19 See Carafas v. LaVallee, 391 U.S. 234, 237–239 (1968) (holding that although 20 petitioner’s parole had expired while seeking appellate review, consequences of the 21 conviction remained and federal courts retained jurisdiction to adjudicate the habeas 22 petition on the merits); Jones v. Cunningham, 371 U.S. 236, 242–243 (1963). In Jones, 23 the petitioner was released to the Virginia Parole Board’s supervision after filing a 24 petition for the writ of habeas corpus. 371 U.S. at 237. The Court held that the petitioner 25 remained in custody, and the district court retained jurisdiction to adjudicate the habeas 26 petition. Id. at 243. The Court reasoned that although petitioner was no longer 27 physically incarcerated, his parole significantly limited his liberty. Id. at 242–43. Thus, 28 the petitioner’s claim was not moot, and he could continue seeking a decision on the 1 merits. Id. at 244. 2 Here, Petitioner remains in custody within the meaning of § 2254(a) because he 3 filed the instant petition while physically incarcerated at Ironwood State Prison. (ECF 4 No. 1 at 1.) California subsequently released Petitioner from physical custody; however, 5 he remains under the supervision of the San Diego County Probation Department until 6 July 2021. (ECF No. 19 at 1.) Presumably, Petitioner is subject to liberty restrictions 7 like typical parole requirements. Thus, like the individual in Jones, this Court has 8 jurisdiction to adjudicate the petition on the merits. 9 B. Petitioner Does Not Contest the Legality of the Custody 10 Furthermore, a federal habeas petition must contest the legality of the custody 11 pursuant to a state court judgment. 28 U.S.C. § 2254(a). In other words, individuals 12 seeking relief under 28 U.S.C. § 2254 must allege that they are being illegally held in 13 custody. Id.; see also Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he traditional 14 function of the writ is to secure release from illegal custody.”). 15 In this federal habeas petition, Petitioner raises four claims for relief. (ECF No. 1 16 at 6–9.) While Petitioner uses different wording for each of his claims, all four 17 essentially allege that Respondent’s request to remand the case for resentencing in the 18 California Court of Appeal violated double jeopardy, due process, and equal protection.2 19 (See id.) However, Respondent conceded that Petitioner was entitled to relief for the one- 20 year enhancement, and the Court of Appeal granted Petitioner relief while denying 21 Respondent’s request to remand the case. (Lodgment No. 6 at 6; Lodgment No. 8 at 3– 22 4.) Thus, Petitioners remaining sentence is the three-year base term. (Lodgment No. 2 at 23 27.) 24 Petitioner “does not attack the validity or legality of the three-year base term in any 25 2 Petitioner basically poses a question for ground two: this petition “simply acts as a petition on the 26 question of double jeopardy requested by the state after conceding that I should benefit from SB 136 but be remanded for possible consecutive terms[, which] the district attorney agreed in a negotiated 27 contractual plea would be fully concurrent.” (ECF No. 1 at 7 (ground two) (original capitalization 28 omitted).) Petitioner states that he does not want his sentence to be subject to reevaluation because the 1 way[.]” (See ECF No. 1 at 7 (ground two) (original capitalization omitted).) Petitioner 2 also does not contest any factual issues. (See id. at 6–9.) Instead, Petitioner attacks 3 Respondent’s remand request, which was resolved by the Court of Appeal. 3 (See id.; 4 Lodgment No. 8 at 3–4.) Thus, Petitioner does not have a cognizable claim contesting 5 the legality of his custody for which this Court can grant Petitioner relief under § 2254. 6 Accordingly, for the foregoing reasons, the Court recommends that Petitioner’s 7 habeas petition be DENIED. 8 VI. CONCLUSION AND RECOMMENDATION 9 The Court submits this Report and Recommendation to United States District 10 Judge William Q. Hayes under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the 11 United States District Court for the Southern District of California. In addition, IT IS 12 HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting 13 this Report and Recommendation, and (2) directing that Judgment be entered DENYING 14 the Petition. 15 IT IS HEREBY ORDERED that any party to this action may file written 16 objections with the Court and serve a copy on all parties no later than November 20, 17 2020. The document should be captioned “Objections to Report and Recommendation.” 18 // 19 // 20 // 21 // 22 // 23 // 24
25 3 In ground four, Petitioner claims that Respondent’s request for remand in the Court of Appeal “creates the very real potential for and [sic] entire class of similarly situated defendants to be subjected to double 26 jeopardy and false imprisonment.” (ECF No. 1 at 9 (ground four) (original capitalization omitted).) Petitioner alleges Respondents “are attempting … to eradicate SB 136 & AB 1618 . . . .” (Id.) 27 However, this is not a class action lawsuit, so the Court of Appeal’s decision not to remand the case for 28 resentencing resolves these concerns in the instant Petition because Petitioner’s base term will not be 1 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with 2 Court and served on all parties no later than December 4, 2020. The parties are 3 || advised that failure to file objections within the specified time may waive the right to 4 ||raise those objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d 5 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991). 6 7 ||Dated: November 6, 2020 ZO 8 / ho LEE 9 Hon. Nita L. Stormes United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28