874 F2d 816 Kim v. Cj Villalobos

874 F.2d 816

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

John KIM, Petitioner-Appellant,
v.
C.J. VILLALOBOS, Respondent-Appellee.

No. 88-5731.

United States Court of Appeals, Ninth Circuit.

Submitted March 24, 1989.*
Decided May 4, 1989.

Before PREGERSON, O'SCANNLAIN, and TROTT, Circuit Judges.

1

MEMORANDUM**

2

Kim, formerly a California state prisoner, appeals from the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas corpus petition. Kim contends that the district court erroneously determined that because he has been released from prison and discharged from parole, Kim's challenge to his conviction is moot.

3

In 1983, Kim was convicted of assault with a deadly weapon. Cal.Penal Code Sec. 245(a)(1) (West 1988). Assault with a deadly weapon is a felony offense in California. Cal.Penal Code Sec. 17(a) (West 1988). Pursuant to his conviction, Kim was sentenced to six years' imprisonment--three years for assault, enhanced by three years for intentional infliction of great bodily injury in the commission of a felony. Cal.Penal Code Sec. 12022.7 (West 1982).

4

Under Article III of the United States Constitution, we may not entertain an appeal if there is no longer a live case or controversy before us. Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir.1987).1 Habeas relief will not lie, therefore, to correct a sentence already served. Aaron v. Pepperas, 790 F.2d 1360, 1361 (9th Cir.1986). Because a felony conviction may cause a defendant to suffer adverse collateral consequences even after he has served his sentence, however, a defendant's challenge to his conviction is not rendered moot simply because he is released from custody prior to the completion of his federal habeas corpus proceedings. Prantil v. California, 843 F.2d 314, 316 n. 2 (9th Cir.), cert. denied, 109 S.Ct. 158 (1988). Moreover, the Supreme Court has "acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences." Sibron v. New York, 392 U.S. 40, 55 (1968) (footnote omitted).

5

Here, Kim's habeas petition challenges the validity of his conviction. In addition, although he is now fully discharged from parole, Kim suffers from significant collateral consequences as a result of that conviction. For example, Kim now may be prohibited from engaging in the sale of liquor2 were he to operate a restaurant as he did prior to his arrest. Kim has also lost his rights to serve on a jury3 and to own or possess a firearm.4

6

Therefore, Kim's habeas petition is not moot.5 See Carafas, 391 U.S. at 237-38 (petitioner's case is not moot when, in consequence of his conviction, he cannot engage in certain businesses, he cannot serve as an official of a labor union for a specified period of time, he cannot vote in any state election, and he cannot serve as a juror). Kim is suffering and will continue to suffer serious legal disabilities so long as his conviction stands. See id. at 239. These existing civil disabilities and burdens, or "collateral consequences," which flow from the conviction, ensure that Kim has a substantial stake in overturning the conviction which survives the satisfaction of the sentence imposed on him. See Aaron, 790 F.2d at 1361-62 (citing Carafas, 391 U.S. at 237); see also Fiswick v. United States, 329 U.S. 211, 222 (1946).

7

The state contends that this case is moot nonetheless because Kim has not shown that he will suffer any actual harm because of his conviction. The state argues further that Kim will be eligible for a pardon pursuant to California Penal Code sections 4852.01-4853 in approximately 1990, and that if he is pardoned his right to serve on a jury, and other rights, can be restored. The state also argues that even if Kim is successful in challenging his conviction, he will suffer some of the same restrictions for reasons unrelated to the conviction.

8

These contentions lack merit. First, a criminal case is moot only if there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.6 Sibron, 392 U.S. at 57. Second, no guarantee exists that Kim will be granted a pardon merely because he is eligible for and requests a pardon. Moreover, because Kim will remain under these existing civil disabilities for another year, he is clearly suffering actual harm now. Cf. Lane v. Williams, 455 U.S. 624, 632-33 n. 13 (1982).7 The state's speculation that Kim might be denied certain rights for other reasons does not exclude the possibility that Kim will be denied these rights because of his conviction. The district court therefore improperly dismissed Kim's 28 U.S.C. Sec. 2254 petition.8

9

REVERSED and REMANDED to the district court for proceedings consistent with this disposition.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

The federal habeas corpus statute requires the applicant to be in custody when the application for writ of habeas corpus is filed. 28 U.S.C. Sec. 2254; Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Under the statutory scheme, once federal jurisdiction has attached in the district court, it is not defeated by the release of the petitioner prior to completion of the proceedings on such application. Carafas, 391 U.S. at 238. The state does not dispute that Kim was in custody when he filed his habeas petition

2

Cal.Bus. & Prof.Code Sec. 23952 (West 1985); see also Cal. Const. art. XX, Sec. 22 (1932, amended 1934, 1954, 1956)

3

Cal.Civ.Proc.Code Sec. 203(5) (West Supp.1989)

4

Cal.Penal Code Secs. 4854 (West Supp.1989), 12560 (West Supp.1989)

5

In his section 2254 petition, Kim challenges his conviction and sentence on the following grounds: (1) denial of his right to a trial by jury; (2) imposition of a harsher sentence in reprisal for failure to plea bargain; (3) denial of his right to appeal; (4) invalid finding on his plea of not guilty by reason of insanity; (5) ineffective assistance of counsel; (6) denial of his right to counsel of choice; (7) illegal seizure of defense funds by police; (8) improper sentencing procedure; and (9) failure to provide counsel and record on appeal. Kim's habeas petition is moot in regard to grounds two and eight, as they challenge Kim's sentence rather than his conviction

6

The state concedes that there are possible collateral consequences resulting from Kim's conviction. It argues, however, that since Kim has admitted committing the crime, Carafas is not controlling. The state cites no authority for this argument, which appears to be entirely meritless. In any event, one of Kim's habeas claims is that he should have been found not guilty by reason of insanity

7

Kim does allege that certain nonstatutory consequences may occur, such as the denial of his right to seek custody of, or visitation with, his minor daughter, and refusal of the Korean government to allow him to return to previous employment in Korea. These consequences are insufficient, however, to satisfy the collateral consequences doctrine of Carafas. See Lane, 455 U.S. at 632-33 n. 13

8

The state requests that if Kim's case is remanded to the district court for consideration of the merits of his petition, Kim should be required to subject himself to the jurisdiction of the district court in the event a retrial is ordered. This request is denied because Kim is represented by counsel, through whom the state may keep track of him, and because the state provides no reason for suspecting that Kim will not appear