Albert A. LARCHE, Petitioner-Appellant, v. Mark SIMONS, Judge Municipal Court, Respondent-Appellee.
No. 93-16950
United States Court of Appeals, Ninth Circuit
Submitted Oct. 5, 1995. Decided May 8, 1995.
53 F.3d 1068
Morris Beatus, Deputy Atty. Gen., San Francisco, CA, for respondent-appellee.
Before: SNEED, PREGERSON, and WIGGINS, Circuit Judges.
WIGGINS, Circuit Judge.
Facts
On October 10, 1989, petitioner Albert Larche was convicted by a jury in a California municipal court of two misdemeanors: corporal injury on a spouse and drawing or exhibiting a firearm. He was sentenced to one year in county jail and three years probation.
Larche sought habeas corpus relief in federal court under
Discussion
Mootness
We begin by noting that we think this appeal should be considered moot. Larche‘s term of probation еnded on October 10, 1993. He is currently free from any restraint upon his liberty. The general rule concerning mootness has long been that a petition for habeas corpus becomes moot when a prisoner completes his sentence before the сourt has addressed the merits of his petition. Robbins v. Christianson, 904 F.2d 492, 494 (9th Cir.1990) (citing Lane v. Williams, 455 U.S. 624, 632, 102 S.Ct. 1322, 1327, 71 L.Ed.2d 508 (1982)); see Picrin-Peron v. Rison, 930 F.2d 773, 776 (9th Cir.1991) (“By his petition for habeas corpus, Picrin-Peron has requested only release from custody. Because he has been released, there is no further relief we can provide.“); see also Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987) (finding that the coram nobis writ provides relief for appellants who have served their sentences and have been released from custody, because habeas corpus writ cannot). There has been an excep-
In the present case, Appellant has not alleged, nor made any showing of, collateral consequences. Accordingly, we believe his claim is moоt. Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir.1987); Naylor v. Superior Court, 558 F.2d 1363 (9th Cir.1977), cert. denied, 435 U.S. 946, 98 S.Ct. 1530, 55 L.Ed.2d 544 (1978); see Lane v. Williams, 455 U.S. 624 at 632-33 n. 13, 102 S.Ct. 1322 at 1327 n. 13, 71 L.Ed.2d 508 (1982) (“Collateral review of a final judgment is not an endeavor to be undertaken lightly. It is not warranted absent a showing that the complainant suffers actual harm from the judgment that he seeks to avoid“).
A recent Ninth Circuit opinion, however, precludes such a finding. In Chacon v. Wood, 36 F.3d 1459 (9th Cir.1994), thе panel held that there is to be a presumption of collateral damages. Moreover, the Chacon panel went an additional step, and ruled that the presumption of collateral damages is irrebuttable, even in misdemeanor cases.1 This we questiоn. In completely eliminating the mootness doctrine from habeas cases, the Chacon opinion ignored the constitutional underpinnings of the mootness doctrine, and the traditional role of the Great Writ.2
The mootness doctrine is founded on constitutional considerations. As Judge Sneed wrote in Cox, “Mootness, however, goes to our constitutional jurisdiction, not our statutory jurisdiction. Under Article III, we may not entertain an appeal if there is no longer a case or controversy before us.” 829 F.2d at 803. In the instant case, Larche hаs neither alleged nor shown collateral consequences. Accordingly, we feel compelled, under Chacon, to decide an issue that may well not entail a genuine case or controversy.
Further, policy concerns regarding the function of the Great Writ also dictate that this result be questioned. The Great Writ has always been an instrument of terminating an unconstitutional incarceration. “Historically, the function of the writ is to secure immediate release from physical custody.” Picrin-Peron, 930 F.2d at 775. Traditionally, it was reserved solely to that task: “[U]nder the writ of habeas corpus we cannot do anything else than discharge the prisoner from the wrongful confinement.” Ex parte Medley, 134 U.S. 160, 173, 10 S.Ct. 384, 388, 33 L.Ed. 835 (1890); see Fay v. Noia, 372 U.S. 391, 430-31, 83 S.Ct. 822, 844-45, 9 L.Ed.2d 837 (1963) (“Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has thе power to release him. Indeed, it has no other power“). The collateral damages exception then arose, uncertainly, allowing defendants to attack their convictions not
In sum, we question the wisdom of the Chacon decision. We are nevertheless bound by it, and accordingly find that this case is not moоt.
Exhaustion
Larche contends that he, as a misdemeanant, was not required to present his claims to the California Supreme Court in order to exhaust his state remedies. We have jurisdiction pursuant to
It is undisputed that Larche must exhaust all available state remedies bеfore turning to the federal courts for habeas review. Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201-02, 71 L.Ed.2d 379 (1982);
The overriding principle requiring exhaustion of state remedies is comity. It is incumbent on the state courts, as well as the fedеral courts, to guard the constitutional rights of defendants, and state courts must be given the opportunity to do so. “[I]t would be unseemly in our dual system of government for the federal courts to upset a state-court conviction without affording the state courts the oрportunity to correct a constitutional violation.” Duckworth v. Serrano, 454 U.S. 1, 4, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981). For this reason, we have repeatedly held that felons must appeal all the way to the state‘s supreme court in order to satisfy the exhaustion requirement. McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir.1988); Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir.1986).
Indeed, our adherence to the principle of comity is so strong that we require that a state‘s highest court be given an opportunity to review constitutional claims even when that court‘s review is discretionary. Jennison v. Goldsmith, 940 F.2d 1308, 1310-12 (9th Cir.1991); see McNeeley, 842 F.2d at 231-32; Kellotat v. Cupp, 719 F.2d 1027, 1031 (9th Cir.1983). Moreover, when we excused a felon‘s failure to seek habeas review in thе California Supreme Court, we emphasized that we did so because that appellant had already presented his claim to the California high court on direct appeal. Turner v. Compoy, 827 F.2d 526, 528 (9th Cir.1987), cert. denied, 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989). In other words, the California Supreme Court had to be given at least one opportunity to review the appellant‘s claims.
Larche asks that we not require that he, like a felony appellant, present his claims to the California Supreme Court at least once before presenting then to the federal courts for review. He notes that he, unlike a felony appellant, cannot directly appeal to the California Supreme Court. Were we to so hold, however, we would deprive the California Supreme Court of any opportunity to rectify constitutional wrongs committed by its lower courts in misdemeanor cases. This we will not do.
The
Further, althоugh such review by the California Supreme Court is discretionary, we have repeatedly held that felons must petition state high courts for review, even when such review is discretionary. Jennison, 940 F.2d at 1310-12; see McNeeley, 842 F.2d at 231-32; Kellotat, 719 F.2d at 1031. We see no reason to make felony appellants apply for discrеtionary review, but not make misdemeanor appellants do the same. Moreover, the language of
An applicant shall not bе deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
In sum, the principle of comity that underlies the exhaustion rеquirement dictates that the California Supreme Court be given the opportunity to correct any constitutional errors a misdemeanant may raise. We therefore hold that before turning to the federal courts for habeas review, misdemeanants must present their constitutional claims to the California Supreme Court by means of state habeas petitions. Accordingly, the dismissal of Appellant‘s claims by the District Court is AFFIRMED on this basis. We express no opinion as to whether the District Court also lacked jurisdiction because of Appellant‘s failure to petition the California Court of Appeal for direct review.
PREGERSON, Circuit Judge, concurring:
I concur in the judgment. However, I write separately to note my disagreement with the opinion‘s unnecessary criticism of Chacon v. Wood, 36 F.3d 1459 (9th Cir.1994).
In Chacon, we held that the release of a hаbeas petitioner does not render his claims moot because of the presumption that collateral consequences may flow from his criminal conviction. Id. at 1463. We also held that this presumption is irrebuttable. Id. The majority opinion follows Chacon to hold that Larche‘s claims are not moot, but in the same breath, “question[s] the wisdom of the Chacon decision.”
Such pointed rebuke of a decision of our court is out of order. The appropriate response would be to call for a rehearing en banc.
Moreover, the opinion‘s objections to Chacon are unavailing. Chacon is in line with well-established Supreme Court and Ninth Circuit precedent that upholds the presumption of collateral consequences. Chacon explains persuasively why the presumption is irrebuttable: “Once convicted, one remains forever subject to the prospect of harsher punishment for a subsequent offense as a result of federal and state [repeat offender] laws.” Id. The opinion reasons that the Chacon rule would require courts to hear habeas petitions even where the petitioner expresses no concern over potential collateral consequences. But a petitioner‘s very act of pursuing an appeal after his release from custody, as Larche did here, is evidence of his concern with potential collateral consequences.
For these reasons, I concur only in the result reached by the court.