Maciel v. Cate

• Decision Date: 25 September 2013
• Docket Number: No. 11–56620.,11–56620.
• Citation: 731 F.3d 928
• Parties: James D. MACIEL, Petitioner–Appellant, v. Matthew L. CATE; J. Flores, Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

731 F.3d 928

James D. MACIEL, Petitioner–Appellant,

v.Matthew L. CATE; J. Flores, Respondents–Appellees.

No. 11–56620.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 2013.

Filed Sept. 25, 2013.

Matthew B. Larsen (argued), Deputy Federal Public Defender, and Sean K. Kennedy, Federal Public Defender, Los Angeles, CA, for Petitioner–Appellant.

Gregory J. Marcot (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Jennifer A. Neill, Senior Assistant Attorney General, and Phillip Lindsay, Supervising Deputy Attorney General, San Diego, CA, for Respondent–Appellee.

Appeal from the United States District Court for the Central District of California, Andrew J. Guilford, District Judge, Presiding. D.C. No. 2:10–cv–07089–AG–RNB.

Before: FORTUNATO P. BENAVIDES,^*JAY S. BYBEE, and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

California state prisoner James D. Maciel appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his sentence for committing lewd and lascivious acts with force against a child. Maciel contends that the state violated Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936), by imposing a parole term and a sex-offender registration requirement that were not part of his criminal judgment. We find Maciel's challenge to his parole term moot because he is no longer on parole. With respect to Maciel's claim that imposition of the sex-offender registration requirement violates Wampler, we hold that the state court's decision was neither contrary to nor an unreasonable application of clearly established federal law. Accordingly, we affirm.

Background

In 1986, Maciel was convicted and sentenced to 42 years and four months in state prison. The sentencing court did not on the record impose a parole term or order Maciel to register with the state as a sex offender following release from imprisonment, despite the fact that state law mandated both requirements. ¹SeeCal.Penal Code §§ 290, 3000 (1986). These requirements also did not appear on the abstract of judgment or, apparently, the criminal judgment itself.²

Maciel was released from custody in 2008, at which time the state informed him that he would be subject to a three-year parole period and sex-offender registration requirement. Eleven months later, Maciel was reimprisoned for violation of parole conditions.

Maciel then filed a round of habeas petitions in the state courts, claiming that the parole and registration requirements violated his right to due process because they were not part of his sentence. The California courts denied relief. The California Court of Appeal, which issued the last reasoned decision, found that “[p]arole periods and registration requirements are statutorily mandated, and not subject to amendment by the trial court.” ³

Maciel sought habeas relief in the district court, arguing that the state court decisions were contrary to Wampler. The district court denied relief and granted a certificate of appealability solely on the issue of whether the imposition of a parole term violated Wampler. Maciel timely appealed and seeks to expand the certificate of appealability to include his second claim challenging the imposition of sex-offender registration requirements. While his appeal was pending, he was discharged from parole, having previously been re-released from prison.

Jurisdiction and Standard of Review

A.

We first address Maciel's request to expand the certificate of appealability because it affects our jurisdiction. Now that Maciel has completed his sentence, there is no longer a live controversy over the state's imposition of a parole term. A criminal sentence—unlike the underlying convictions which he does not challenge—carries no presumption of collateral consequences. Thus, a habeas petitioner must show “some concrete and continuing injury other than the now-ended incarceration or parole ... if the suit is to be maintained.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

Because Maciel has not identified a continuing collateral consequence that flows from his expired parole term, we find the sole certified issue moot.⁴ Therefore, we lack jurisdiction over this appeal unless we grant Maciel's motion to certify his claim involving the imposition of a sex-offender registration requirement. Cf. Phelps v. Alameda, 366 F.3d 722, 729–30 (9th Cir.2004) (holding that appeal from denial of habeas petition was moot where COA did not encompass district court's ruling that independently precluded relief and where we could not expand certificate of appealability sua sponte). We may expand the certificate of appealability if Maciel “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Ngo v. Giurbino, 651 F.3d 1112, 1115 n. 1 (9th Cir.2011). This means only “that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further.” Muth v. Fondren, 676 F.3d 815, 822–23 (9th Cir.2012) (quoting Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.2000)) (internal quotation mark omitted). We think that Maciel has met this standard. Therefore, we certify Maciel's second claim for relief and exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253.

B.

We review the district court's denial of a habeas petition de novo. Varghese v. Uribe, 720 F.3d 1100, 1105 (9th Cir.2013). Although Maciel was convicted in 1986, our review of his claims is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214, which applies to all habeas petitions filed after its effective date. See Lindh v. Murphy, 521 U.S. 320, 322–23, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). We may grant relief only if Maciel shows that the state court's adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Analysis

The sole question we face is whether the state court's denial of Maciel's claim was contrary to or an unreasonable application of Wampler. We thus begin with a discussion of that case.

A.

Thomas Wampler was convicted of income tax fraud and sentenced to an 18–month term in a federal penitentiary and a $5,000 fine. Wampler, 298 U.S. at 461, 56 S.Ct. 760. The clerk of court forwarded a warrant of commitment to the penitentiary but inserted language to the effect that Wampler was to remain imprisoned until he paid the fine or was discharged by due process of law. Id. at 461–62, 56 S.Ct. 760. Near the end of his prison term, Wampler petitioned the district court to remove this language from the warrant of commitment, id. at 462, 56 S.Ct. 760, presumably because he had not yet paid the fine and wished to be released.

The district court denied the petition on the ground that, for at least 40 years, it had followed the Maryland common law practice of imposing a repayment condition but not including it in the judgment. Instead, the clerk of court would prepare the warrant of commitment with the condition included unless directed otherwise by the court. Id.;United States v. Wampler, 10 F.Supp. 609, 610–11 (D.Md.1935). Wampler obtained habeas relief from a different district court,⁵ and the warden appealed to the Third Circuit, which certified the relevant legal questions to the United States Supreme Court.

Justice Cardozo, writing for a unanimous Court, held that Wampler was entitled to habeas relief because the repayment condition of release, contained only in the warrant of commitment but not in the district court's judgment, was void. Wampler, 298 U.S. at 465, 56 S.Ct. 760. Although the constitutional basis for the Court's holding was not explained, the decision was apparently grounded in considerations of due process.⁶See Earley v. Murray, 451 F.3d 71, 76 n. 1 (2d Cir.2006) (positing that constitutional due process guarantees were the source of Wampler 's rule because Wampler recognized that “[a]ny deficiency in the sentence could have been corrected through the proper procedures”), cert. denied,551 U.S. 1159, 127 S.Ct. 3014, 168 L.Ed.2d 752 (2007).

B.

Seventy years later, the Second Circuit confronted facts in Earley materially identical to those here and granted habeas relief under Wampler. Sean Earley pled guilty to second degree attempted burglary and was sentenced to six years in prison. Earley, 451 F.3d at 73. Although state law mandated a term of post-release supervision, the sentencing court did not orally impose it, nor was it reflected in the written judgment or order of commitment. The New York Department of Correctional Services administratively added a five-year term of post-release supervision to Earley's sentence without informing him. Id. The Second Circuit held that, in light of Wampler, “clearly established Supreme Court precedent renders the five-year [post-release supervision] term added to Earley's sentence ... invalid.” Id. at 76.⁷

C.

On the assumption that Earley was correctly decided, Maciel asks us to extend it and find that the administrative imposition of the sex-offender registration requirement, rather than by a court order, also violates Wampler. Whether or not the Second Circuit is correct about Wampler 's scope, we think the California courts were entirely reasonable in distinguishing Wampler from the facts of this case.

1.

There are a number of important differences between Wampler's and Maciel's situations. Most obviously, Wampler concerned illegitimate detention, not the collateral consequences of that detention. The Supreme Court emphasized...