Chaker v. Crogan, 03-56885.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation428 F.3d 1215
Docket NumberNo. 03-56885.,03-56885.
PartiesDarren David CHAKER, Petitioner-Appellant, v. Alan CROGAN; San Diego Probation Department; People of the State of California, Respondents-Appellees.
Decision Date03 November 2005

Page 1215

428 F.3d 1215
Darren David CHAKER, Petitioner-Appellant,
Alan CROGAN; San Diego Probation Department; People of the State of California, Respondents-Appellees.
No. 03-56885.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 6, 2004.
Filed November 3, 2005.

Page 1216

Walter K. Pyle, Berkeley, CA, for the petitioner-appellant.

Kelly M. Rand, Deputy District Attorney, San Diego, CA, for the respondents-appellees.

Mark D. Rosenbaum (argued), Alan L. Schlosser, Los Angeles, CA, and Daniel P. Tokaji (briefed), Columbus, OH, for ACLU of San Diego and Imperial Counties, ACLU of Southern California and ACLU of Northern California.

Everett L. Bobbitt (briefed), Bobbitt & Pinckard, San Diego, CA, for El Cajon Police Officers Assn., San Diego County Deputy Sheriff's Assoc. and San Diego Police Officers Assn.

Michael D. Schwartz (briefed), Ventura, CA, for California District Attorney's Assoc.

Christopher D. Lockwood (argued), Joseph Arias (briefed), Arias, Lockwood & Gray, San Bernardino, CA, for City of San Bernardino.

Alison Berry Wilkinson (briefed), Rains, Lucia & Wilkinson, Pleasant Valley, CA, for Peace Officers Research Assoc. of California Legal Defense Fund.

Kent S. Scheidegger (briefed), Sacramento, CA, for Criminal Justice Legal Foundation.

Michael R. Capizzi (argued), Krista McNevin Jee (briefed), Fullerton, CA, for California State Sheriff's Assn., California Police Chief's Assn. and California Peace Officers Assn.

Page 1217

Before: HUG, PREGERSON, and BERZON, Circuit Judges.

PREGERSON, Circuit Judge:

Darren David Chaker appeals the district court's denial of his habeas corpus petition brought under 28 U.S.C. § 2254. Chaker was convicted by a jury for filing a knowingly false complaint of peace officer misconduct in violation of California Penal Code section 148.6(a)(1). In his habeas corpus petition, Chaker alleges that California Penal Code section 148.6 violates the First Amendment. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

As discussed below, a formal complaint of peace officer misconduct triggers a mandatory investigation conducted by the peace officer's employing agency. Within the limited context of that investigation, section 148.6 criminalizes knowingly false speech critical of peace officer conduct, but leaves unregulated knowingly false speech supportive of peace officer conduct. Because we conclude that the statute impermissibly discriminates on the basis of a speaker's viewpoint in violation of the First Amendment, we reverse the district court and grant the petition.


On April 9, 1996, El Cajon Police Officers Bill Bradberry and Terry Johnston arrested Chaker for theft of service for retrieving his car from a mechanic without paying. Several months later, on August 15, 1996, Chaker filed a claim for damages form with the City of El Cajon alleging that Officer Bradberry injured him during the arrest. Specifically, Chaker alleged that Officer Bradberry hit him in the ribs, twisted his wrist, and failed to secure Chaker in the police vehicle with a seat belt so that Chaker struck his head during sudden stops.1 Chaker also sent a letter directly to the El Cajon Police Department Internal Affairs Division, dated March 23, 1997, making the same complaint. In addition to the preceding allegations, Chaker alleged that he was strip-searched by Detective Bradberry. Chaker signed the March letter under penalty of perjury.

In March 1998, the San Diego District Attorney's office filed a misdemeanor criminal complaint against Chaker in state court. The complaint charged Chaker with the misdemeanor offense of filing a knowingly false allegation of peace officer misconduct in violation of California Penal Code section 148.6(a)(1). At the ensuing jury trial, Officers Bradberry and Johnston testified and denied using excessive force against Chaker. A witness to the arrest testified that the arrest appeared to be routine. She stated that from her vantage point, Chaker did not seem to be in any pain during the arrest. Finally, the Internal Affairs Officer responsible for investigating Chaker's complaint testified and authenticated the letter submitted by Chaker to the El Cajon Police Department.

At trial, the court admitted a civil complaint in a lawsuit filed by Chaker against Officer Bradberry. The complaint contained a claim for slander arising out of an encounter between Officer Bradberry and

Page 1218

Chaker on April 11, 1996, two days after Officer Bradberry arrested Chaker for theft of services.2 The court reasoned that the state could use the complaint as evidence of what was "not on it," for example, any discussion of Officer Bradberry's alleged use of excessive force during Chaker's April 9, 1996, arrest.3

On February 22, 1999, the jury found Chaker guilty of violating section 148.6(a)(1). The court sentenced Chaker to two days of custody with credit for time served, fifteen days of public service, and three years of probation. The court also ordered Chaker to pay a fine and restitution totaling $1142.

Chaker appealed his conviction to the San Diego County Appellate Division of the Superior Court. That court affirmed his conviction. Rather than continue his direct appeal, Chaker filed a habeas corpus petition in Superior Court, and then another in the California Supreme Court, alleging ineffective assistance of both trial and appellate counsel. Both courts denied his petitions. Chaker filed a second habeas petition in the California Supreme Court on December 26, 2000, this time alleging denial of the right to self-representation. This petition was denied as well.

On October 23, 2000, Chaker filed a pro se habeas petition in federal district court alleging various problems with his state conviction. While his federal habeas petition was pending before the district court, Chaker filed his third state habeas petition with the California Supreme Court on September 10, 2001.

In his third state habeas petition, Chaker raised for the first time a First Amendment challenge to section 148.6. This petition was also denied, and the order denying the petition cited California cases concerning procedural default. After the California Supreme Court rejected Chaker's First Amendment challenge, he raised the claim in his February 25, 2002, amended federal habeas petition.

On November 8, 2002, Chaker moved for summary judgment on his First Amendment claim. The magistrate judge issued a Report and Recommendation recommending denial of Chaker's habeas petition. The district court adopted in part the conclusions of the magistrate judge, denied the petition, and issued a limited certificate of appealability on Chaker's First Amendment claim.

I. Procedural Issues and Standard of Review

The state and amicus curiae supporting the state raise several issues potentially barring our review of Chaker's habeas petition. The state argues that we lack jurisdiction because Chaker was no longer serving his probation at the time of this appeal. The state also contends that the present appeal is moot because Chaker is not suffering any significant collateral consequences from his conviction. Finally, amicus curiae Criminal Justice Legal Foundation ("CJLF") argues that because Chaker failed to raise his First Amendment

Page 1219

claim while he was still in custody, the district court lacked jurisdiction over Chaker's First Amendment claim. We resolve these issues before addressing the merits of Chaker's First Amendment claim.

A. Jurisdiction

The state argues that we should dismiss Chaker's petition for lack of jurisdiction because Chaker is no longer on probation, and thus is not "in custody" for habeas purposes. The state is correct that "[f]or a federal court to have jurisdiction over a habeas petition filed by a state prisoner, the petitioner must be `in custody.'" Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir.2001). Nonetheless, if a petitioner is in custody at the time he files his federal habeas petition, his subsequent release from custody does not deprive the court of its jurisdiction. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir.1988). Furthermore, a petitioner is "in custody" for the purposes of habeas jurisdiction while he remains on probation. Id.; see also Jackson v. Coalter, 337 F.3d 74, 79 (1st Cir.2003). Thus, because Chaker was still serving his probation on the date he filed his habeas petition in federal court, we have jurisdiction over this appeal.

B. Mootness

The state next argues that this case is moot, contending that Chaker is no longer suffering any significant collateral consequences as a result of his misdemeanor criminal conviction. This argument is foreclosed by Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir.1994), overruled on other grounds, 8 U.S.C. § 2254(c). In Chacon, we recognized an irrefutable presumption that collateral consequences result from any criminal conviction. See id. We explained that "[o]nce convicted, one remains forever subject to the prospect of harsher punishment for a subsequent offense as a result of federal and state laws that either already have been or may eventually be passed." Id.; accord Wood v. Hall, 130 F.3d 373, 376 (9th Cir.1997); Larche v. Simons, 53 F.3d 1068, 1070-71 (9th Cir.1995). Because Chaker faces the prospect of harsher punishment at a later date as a result of his conviction under section 148.6, his claim continues to present a live controversy.4

C. Statute of Limitations

Federal habeas petitions ordinarily must be filed within one year of the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); see Mayle v. Felix, ___ U.S. ___, ___, 125 S.Ct. 2562, 2573, 162 L.Ed.2d 582 (2005) (quoting statute).


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