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Dominguez v. Kernan

United States Court of Appeals, Ninth Circuit

October 23, 2018

Florencio Jose Dominguez, Petitioner-Appellant,
v.
Scott Kernan, Secretary of the California Department of Corrections and Rehabilitation, Respondent-Appellee.

          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, ...


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