Florencio Dominguez v. Scott Kernan
906 F.3d 1127
9th Cir.2018Background
- Dominguez was originally tried for murder in 2010; that trial ended in a hung jury and the state trial court dismissed the case under Cal. Penal Code § 1385 (dismissal without prejudice).
- The state refiled the case charging murder and adding conspiracy to commit murder; Dominguez demurred on double jeopardy and related grounds; the demurrer was overruled and Dominguez was convicted at a second trial.
- Dominguez filed a federal habeas petition under 28 U.S.C. § 2254 claiming the second prosecution violated the Double Jeopardy Clause; a magistrate judge recommended granting the writ.
- While the federal petition was pending, a state trial court vacated Dominguez’s convictions under Brady v. Maryland; the state elected to retry him on only the conspiracy charge and Dominguez remains in pretrial custody.
- The district court dismissed the § 2254 petition as moot based on the vacatur; Dominguez appealed.
- The Ninth Circuit held (1) the petition was not moot because Dominguez remains in custody and challenges an ongoing prosecution; (2) § 2254 no longer applied because the state judgment was vacated and custody is now pretrial; and (3) the district court may convert the § 2254 petition to a § 2241 petition rather than require dismissal and refiling.
Issues
| Issue | Plaintiff's Argument (Dominguez) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Mootness of § 2254 petition | Petition remains live because Dominguez is in custody and faces retrial on the same constitutional double jeopardy claim | Vacatur of convictions moots the petition because the convictions (and their custody) have been vacated | Petition is not moot: ongoing custody and prosecution keep the controversy live |
| Proper statutory vehicle (§2254 vs §2241) | Initially filed under §2254 when custody followed conviction; after vacatur, §2254 should no longer apply | §2254 remains appropriate because petitioner was in custody when petition filed | After vacatur, §2254 no longer required; pretrial detention is not custody "pursuant to the judgment of a State court" so petitioner may proceed under §2241 |
| Must petitioner dismiss and refile under §2241? | Conversion is permitted—court may convert rather than force dismissal/refiling | State argued conversion would raise unresolved issues (Younger, exhaustion, merits) and district court should decline | Court may convert a §2254 petition to §2241 (with petitioner’s consent or request) when circumstances change during pendency |
| Younger abstention and exhaustion issues | Double jeopardy claim is colorable and thus excepted from Younger; exhaustion was pleaded in state courts for double jeopardy generally | State argued Younger/other procedural issues counsel against federal intervention and questioned exhaustion for conspiracy charge | Younger abstention inapplicable for colorable double jeopardy claim; exhaustion and collateral-estoppel (Ashe) issues left for district court to decide on remand |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (suppression of material favorable evidence violates due process)
- Brown v. Ohio, 432 U.S. 161 (1977) (Double Jeopardy Clause prohibits multiple prosecutions for the same offense)
- Abney v. United States, 431 U.S. 651 (1977) (pretrial double jeopardy claims may require pretrial federal intervention because rights would be lost if not vindicated before trial)
- Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel component of double jeopardy bars inconsistent factual findings in subsequent prosecutions)
- Spencer v. Kemna, 523 U.S. 1 (1998) (vacatur or release can moot habeas claims absent continuing collateral consequences)