Albert A. Larche v. Mark Simons, Judge Municipal Court

53 F.3d 1068 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. Pregerson, Circuit Judge, concurred in result and filed opinion. Albert A. Larche, Concord, CA, pro se. Morris Beatus, Deputy Atty. Gen., San Francisco, CA, for respondent-appellee. Appeal from the United States District Court for the Northern District of California. Before: SNEED, PREGERSON, and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge. Facts 1 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. 2 Larche sought habeas corpus relief in federal court under 28 U.S.C. Sec. 2254 . The district court dismissed Larche's petition without prejudice. It found it undisputed both that Larche had failed to request certification from the superior court to the California Court of Appeal, as is permitted under California Rule of Court 63, and that Larche had failed to…

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 28 U.S.C. § 2254 . The district court dismissed Larche’s petition without prejudice. It found it undisputed both that Larche had failed to request certification from the superior court to the California Court of Appeal, as is permitted under California Rule of Court 63, and that Larche had failed to seek review of his claims in the California Supreme Court by means of a state habeas proceeding, as is permitted by the California Constitution. The District Court noted, however, that an earlier District Court in the Ninth Circuit had ruled that a misdemeanant need not present his claims to the California Supreme court in order to exhaust his state remedies for federal habeas purposes. The District Court therefore found this question debatable, and accordingly granted a certificate of probable cause to appeal.

Discussion

Mootness

We begin by noting that we think…

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 habeas 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 Cha-con 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…