SHEILA K. OBERTO, Magistrate Judge.
Petitioner, William Allen Smith, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges two grounds for habeas relief: (1) "illegal requirement to register as a sexual offender for out-of-state conviction"; and (2) the registration requirement is a violation of his right to equal protection.
Two year old G. and his eight year old brother N. were playing in a vacant lot near their home in Bakersfield when Petitioner pulled up in his girlfriend's car. G. road up to the vehicle on his tricycle, Petitioner opened the door of the vehicle, put the boy in the car, and drove off. N. quickly reported the abduction to his mother, who called the Bakersfield Police Department.
Approximately 30 minutes after G. and N.'s mother called police, an anonymous male caller notified Bakersfield Police that G. could be found at a church roughly 3 miles from the abduction site. An officer found G. crying in the church parking lot 20 minutes later. G. appeared shaken, but did not appear to have suffered any physical injuries. G. went a local hospital for an examination, and was later reunited with his parents.
Later that same day, a Bakersfield Police Detective contacted Petitioner at his mother's home, which was located one to two blocks from the abduction site. Petitioner fit the description of the abductor provided by N. and a vehicle matching the description of the one involved in the crime was parked outside the home. N. positively identified Petitioner as the abductor and Petitioner was taken into custody.
At trial, Petitioner's girlfriend, Dana Williams ("Ms. Williams"), testified that Petitioner dropped her off at work on the day of the abduction and then drove off with her vehicle, which was later identified as the one involved in the abduction. Ms. Williams testified that sometime after the abduction, Petitioner admitted he watched G. and N. play, but stated that G. walked up to the vehicle and climbed inside it by himself. According to Williams, Petitioner claimed he then drove off with G. and dropped him off a few blocks away before calling police.
In May 1996, a jury convicted Petitioner of kidnapping (Cal. Penal Code § 208(b)). Petitioner was sentenced to 33 years to life in prison with two additional five year enhancements for having two strikes.
Petitioner appealed his conviction and on August 27, 1997, the California Court of Appeal for the Fifth Appellate District affirmed the judgment. Petitioner filed his appeal with the Supreme Court on September 29, 1997. On November 12, 1997, the California Supreme Court summarily denied Petitioner's "Petition for Review."
While his appeal was pending with the Supreme Court, on October 14, 1997, Petitioner filed a petition for writ of habeas corpus challenging the legality of his conviction with the Kern County Superior Court. On September 28, 1998, the Superior Court held that the admission of a statement Petitioner made during an interview with a local television station was improperly admitted at trial.
On January 20, 1999, Petitioner's second jury trial commenced. The second jury convicted Petitioner of kidnapping (Cal. Penal Code § 208(b)). In a bifurcated proceeding, the trial court found true allegations that Petitioner suffered two prior strikes. On March 1, 1999, Petitioner was sentenced to an indeterminate term of 43 years to life.
On September 12, 2000, the Court of Appeal affirmed Petitioner's conviction for kidnapping and affirmed the fact that he suffered one strike. The court remanded the finding on the second strike to the trial court for further proceedings on the issue of whether one of Petitioner's prior convictions
Upon remand from the Court of Appeal, the trial court held a hearing on February 21, 2001. At the hearing, the prosecutor informed the court that Petitioner's prior Florida conviction was insufficient to count as a strike in California. The trial court dismissed this strike and sentenced Petitioner to a determinate state prison term of 27 years.
Petitioner appealed his conviction and on October 18, 2001, the appeal was dismissed pursuant to Petitioner's request.
On November 9, 2015, Petitioner filed his petition for habeas corpus with this Court. Respondent filed a response on March 9, 2016, and Petitioner replied on April 25, 2016.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
A petitioner who is in state custody and wishes to collaterally challenge his conviction through a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365; Kenney v. Tamayo-Reyes, 504 U.S. 1, 8 (1992).
The petitioner must also have specifically informed the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). If any of grounds for collateral relief set forth in a petition for habeas corpus are unexhausted, the Court must dismiss the petition. 28 U.S.C. § 2254(b)(1); Rose, 455 U.S. at 521-22.
Here, in his response to the petition, Respondent assumes, for the purposes of the response, that the petition is timely, and asks the Court to skip the question of whether Petitioner's claim is exhausted and proceed to the merits of the claim. (Doc. 16 at 4.) Petitioner responds that the petition is timely. (Doc. 23 at 6.)
Courts "are empowered to, and in some cases should, reach the merits of habeas petitions if they are, on their face and without regard to any facts that could be developed below, clearly not meritorious despite an asserted procedural bar." Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997) ("It is wasteful of both our resources and that of the litigants to remand to the district court a case in which that court improperly found a procedural bar, if the ultimate dismissal of the petition is a foregone conclusion.")). This is because "[p]rocedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same." Id. In this case, based on the complex procedural history of the case, the court will proceed directly to analyzing the merits of Petitioner's claim.
Petitioner contends that California improperly determined that he is required to register under California Penal Code § 290
A petitioner seeking federal habeas relief must allege that he is in custody "pursuant to the judgment of a State court . . . in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The requirement that an individual seeking relief under §2254 be "in custody [] is jurisdictional and therefore `it is the first question we must consider.'" Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (quoting Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998)). "[T]he boundary that limits the in custody requirement is the line between a restraint on liberty and a collateral consequence of a conviction." Bailey, 599 F.3d at 979 (quoting Williamson, 151 F.3d at 1183) (internal quotation marks omitted). For example, "the imposition of a fine or the revocation of a license is merely a collateral consequence of conviction, and does not meet the `in custody' requirement." Williamson, 151 F.3d at 1183 (collecting cases). After determining whether a petitioner is "in custody," the Court must then determine if the Petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The Ninth Circuit has held that the requirement to register as a sex offender in California does not satisfy the "in custody" requirement for purposes of federal habeas relief. Henry v. Lungren, 164 F.3d 124, 1242 (9th Cir. 1999). Registration "does not constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner `in custody' for the purposes of federal habeas corpus relief." Id. (citing Jones v. Cunningham, 371 U.S. 236, 242-43 (1963). The registration requirement, is "merely a collateral consequence of conviction that is `not [itself] sufficient to render an individual "in custody" for the purposes of a habeas attack upon it.'" Id. (quoting Maleng v. Cook, 490 U.S. 488, 492 (1989)); see also McNab v. Kok, 170 F.3d 1246 (9th Cir. 1999) ("We have held that . . . California's sex offender registration statute[] do[es] not place a petitioner in custody because the[] statute[] do[es] not place `a significant restraint on . . . physical liberty' by restricting the registrant's freedom to move about." (quoting Williamson, 151 F.3d at 1183-84)); Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001) ("Several times, we have held that merely being subject to a sex offender registry requirement does not satisfy the `in custody' requirement. . . .").
Petitioner is only challenging his requirement to register as a sex offender under California law. As set forth above, the Court does not have jurisdiction over Petitioner's petition for habeas corpus relief because he is not "in custody." Therefore, the Court recommends denying the petition for habeas corpus.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented required further adjudication. Accordingly, the Court declines to issue a certificate of appealability.
Based on the foregoing, the undersigned recommends that the Court deny the Petition for writ of habeas corpus with prejudice and decline to issue a certificate of appealability.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C § 636(b)(1). Within
Cal. Penal Code §§ 290(a)-(b).
