Argued
and Submitted June 8, 2018 Pasadena, California
Appeal
from the United States District Court for the Southern
District of California D.C. No. 3:14-cv-02890-BAS-RBB Cynthia
A. Bashant, District Judge, Presiding.
Matthew J. Speredelozzi (argued) and Patrick Morgan Ford, San
Diego, California, for Petitioner-Appellant.
Kevin
Vienna (argued), Deputy Attorney General; Daniel Rogers,
Supervising Deputy Attorney General; Julie L. Garland, Senior
Assistant Attorney General; Xavier Becerra, Attorney General;
Office of the Attorney General, San Diego, California; for
Respondent-Appellee.
Before: Raymond C. Fisher and Morgan Christen, Circuit
Judges, and Edward F. Shea, District Judge. [*]
SUMMARY[**]
Habeas
Corpus
The
panel vacated the district court's dismissal of Florencio
Dominguez's 28 U.S.C. § 2254 habeas corpus petition
asserting that the state of California's second
prosecution of him violates the Double Jeopardy Clause, and
remanded.
Dominguez
was charged with murder. After his trial ended in a hung
jury, the trial court dismissed the case and the state filed
a new complaint, charging Dominguez with murder and
conspiracy to commit murder. Dominguez filed a demurrer,
arguing the second prosecution violated his rights under the
Double Jeopardy Clause and California law, but the trial
court overruled his demurrer, and Dominguez was tried and
convicted. Dominguez then asserted his double jeopardy claim
in the § 2254 petition. While that petition was pending,
the state trial court vacated Dominguez's convictions
under Brady v. Maryland, 373 U.S. 83 (1963), and the
state has elected to retry him on the charge of conspiracy to
commit murder. The state placed Dominguez in pretrial
custody, where he remains. Citing the state court's
decision vacating the earlier convictions, the district court
dismissed Dominguez's federal habeas petition as moot.
The
panel held that Dominguez's petition is not moot. The
panel explained that the petition continues to present a live
controversy because he remains in custody, continues to claim
he is in custody in violation of the Constitution of the
United States, and continues to present precisely the same
legal claim that he presented when his petition was filed -
that the state's second prosecution of him, which remains
ongoing, violates his federal constitutional right not to be
twice placed in jeopardy for the same offense.
The
panel also held that because Dominguez's detention is no
longer attributable to a state court judgment, proceeding
under § 2254 is no longer appropriate, and he is free to
seek habeas relief under 28 U.S.C. § 2241(a) and (c)(3)
instead.
The
panel held that, to proceed under § 2241, Dominguez is
not required to dismiss his § 2254 petition and file a
new petition under § 2241. The panel held that just as a
court may convert a § 2241 petition to a § 2254
petition when a pretrial detainee is convicted while a
petition is pending, a court has the authority to convert a
§ 2254 petition into a § 2241 petition when, as
here, a petitioner's convictions are vacated during the
pendency of the petition and the petitioner has become a
pretrial detainee. The panel instructed that the district
court on remand shall, either upon Dominguez's request or
at the court's initiation but with Dominguez's
consent, convert the petition to one arising under §
2241. The panel instructed that if Dominguez elects not to
convert the petition, the district court shall dismiss the
petition without prejudice.
OPINION
FISHER, Circuit Judge.
Florencio
Dominguez was charged with murder. After his trial ended in a
hung jury, the trial court dismissed the case under
California Penal Code § 1385. The state filed a new
complaint, charging Dominguez with murder and conspiracy to
commit murder. Dominguez filed a demurrer, arguing the second
prosecution violated his rights under the Double Jeopardy
Clause and California law, but the trial court overruled his
demurrer, and Dominguez was tried and convicted. Dominguez
then asserted his double jeopardy claim in a federal habeas
petition under 28 U.S.C. § 2254. While that petition was
pending, the state trial court vacated Dominguez's
convictions under Brady v. Maryland, 373 U.S. 83
(1963), and the state has elected to retry him on the charge
of conspiracy to commit murder. The state placed Dominguez in
pretrial custody, where he remains. Citing the state
court's decision vacating the earlier convictions, the
district court dismissed Dominguez's federal habeas
petition as moot. Dominguez appeals.
We hold
Dominguez's petition is not moot. It continues to present
a live controversy because he remains in custody, continues
to claim he is in custody in violation of the Constitution of
the United States and continues to present precisely the same
legal claim that he presented when his petition was filed -
that the state's second prosecution of him, which remains
ongoing, violates his federal constitutional right not to be
twice placed in jeopardy for the same offense.
We
hold, however, that Dominguez is no longer required to
proceed under § 2254. Section 2254 limits the general
grant of habeas authority under 28 U.S.C. § 2241 by
placing additional obstacles in the path of a person seeking
habeas relief when he is "in custody pursuant to the
judgment of a State court." 28 U.S.C. § 2254(a).
Where a petitioner is not challenging custody
attributable to a state court judgment, his custody does not
bear a presumption of validity. Section 2254 therefore does
not apply, and he is free to seek habeas relief under §
2241(a) and (c)(3) instead.
Finally,
we hold that, to proceed under § 2241, Dominguez is not
required to dismiss his § 2254 petition and file a new
petition under § 2241. Just as a court may convert a
§ 2241 petition to a § 2254 petition when a
pretrial detainee is convicted while a petition is pending,
we hold that a court has the authority to convert a §
2254 petition into a § 2241 petition when a
petitioner's convictions are vacated during the pendency
of the petition and the petitioner has become a pretrial
detainee.
We
vacate the judgment and remand for proceedings consistent
with this opinion.
BACKGROUND
Dominguez
was charged with murder in 2010 (San Diego County Superior
Court No. SCD225579). His trial resulted in a hung jury, and
the state trial court dismissed the case under California
Penal Code § 1385.[1] The state refiled the criminal
complaint (San Diego County Superior Court No. SCD230596),
charging Dominguez again with murder and adding a new charge
for conspiracy to commit murder. See Cal. Penal Code
§§ 182(a)(1), 187(a). Dominguez filed a demurrer,
arguing the second prosecution was barred by double jeopardy
and California Penal Code § 654.[2] He contended the state trial
court's dismissal under § 1385 amounted to a finding
of insufficient evidence that operated as an acquittal for
purposes of double jeopardy. See Bravo-Fernandez v.
United States, 137 S.Ct. 352, 364 (2016) ("For
double jeopardy purposes, a court's evaluation of the
evidence as insufficient to convict is equivalent to an
acquittal and therefore bars a second prosecution for the
same offense."). The state trial court overruled the
demurrer.
The
second prosecution proceeded to trial, and Dominguez was
convicted on both charges. Dominguez appealed the
convictions, arguing again that the second prosecution
violated double jeopardy. In a reasoned decision, the
California Court of Appeal denied relief, disagreeing with
Dominguez's contention that the 2010 dismissal
constituted a finding of insufficient evidence. See
People v. Dominguez, No. D060019, 2013 WL 3362112, at
*8-10 (Cal.Ct.App. July 5, 2013). The California Supreme
Court denied review.
Dominguez
then filed a federal habeas petition under 28 U.S.C. §
2254, renewing his double jeopardy challenge to the second
prosecution. Dominguez argued "the second trial was
barred under the Fifth Amendment" and asked the district
court to "remand the case back to trial court directing
it to grant [his] demurrer on Double Jeopardy grounds."
A federal magistrate judge recommended the district court
grant the writ, agreeing with Dominguez that the 2010
dismissal operated as an acquittal, and concluding that the
California Court of Appeal's decision to the contrary was
both an unreasonable application of Supreme Court precedent
under § 2254(d)(1) and based on an unreasonable
determination of the facts under § 2254(d)(2).
Before
the district court could rule on the magistrate judge's
recommendation, a state trial court granted Dominguez
post-conviction relief on an independent ground, vacating his
murder and conspiracy convictions under Brady v.
Maryland, 373 U.S. 83 (1963).[3] The trial court vacated the
judgment and ordered the state to either retry Dominguez or
release him. The state has elected to retry Dominguez, but it
is proceeding solely on the conspiracy charge. Dominguez
remains in state custody pending trial.[4]
When
the district court learned of the state court's decision
vacating the convictions, it ordered the parties "to
show cause as to why [the federal petition] should not be
dismissed as moot." The state urged the court to dismiss
the petition, arguing that, "[b]ecause Dominguez is no
longer in custody for the murder conviction, he received the
relief he sought in this Court." Dominguez opposed
dismissal, arguing his petition continued to present a live
controversy because he "remains in custody facing
retrial" and the retrial would "violate double
jeopardy on the exact same grounds Dominguez claims in this
[petition]."
In a
January 2018 order, the district court agreed with the state
and concluded Dominguez's petition was moot:
Dominguez filed this petition under 28 U.S.C. § 2254 to
challenge his conviction for first-degree murder and
conspiracy to commit murder. But the state court has since
vacated this conviction. In doing so, it extinguished
Dominguez's two claims under § 2254. His claim that
. . . his second prosecution violated the Double Jeopardy
Clause . . . does not present a live controversy. He is no
longer in custody pursuant to the conviction procured by the
second prosecution. Moreover, unlike cases where petitioners
have completed their sentences but are still permitted to
challenge their convictions because the convictions cause
collateral consequences, there is no conviction here for
Dominguez to seek to set aside. At this point, opining on the
constitutional condition of Dominguez's second
prosecution would be advisory. Therefore, the two claims
raised in Dominguez's § 2254 petition are moot.
The
court also declined to treat Dominguez's petition as a
"pre-trial custody petition" under 28 U.S.C. §
2241, explaining that doing so would require the court to
address three undeveloped issues: Younger
abstention; exhaustion; and the merits of Dominguez's
double jeopardy claim.[5] The court dismissed Dominguez's
petition as moot and declined to issue a certificate of
appealability.
Dominguez
timely appealed, and we issued a certificate of appealability
"with respect to . . . whether the district court erred
by dismissing the petition as moot, including whether the
petition should be construed as a petition under 28 U.S.C.
§ 2241."
STANDARD
OF REVIEW
"We
review de novo the district court's dismissal of a habeas
petition on the ground of mootness." Zegarra-Gomez
v. INS, ...