Jeanne Manunga v. Superior Court of California ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 24 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEANNE MUNDOGO MANUNGA, No. 14-55568
Petitioner - Appellant, D.C. No. 8:14 cv-00238- AG-RZ
v.
MEMORANDUM*
SUPERIOR COURT OF CALIFORNIA
ORANGE COUNTY,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted December 8, 2015
Pasadena, California
Before: PREGERSON, TASHIMA, and CALLAHAN, Circuit Judges.
Jeanne Mundogo Manunga, a Congolese national, appeals the district court’s
dismissal of her 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging
her 2010 California state court conviction. Manunga was also convicted of an
unrelated offense in state court in 2012. Manunga filed two federal habeas
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petitions challenging the 2010 conviction, one on January 7, 2013, and the other on
February 7, 2014. The district court dismissed both petitions for lack of
jurisdiction and, alternatively, because the petitions were untimely and
unexhausted. Manunga appealed the dismissal of her 2014 petition, and this Court
issued a certificate of appealability as to the three grounds on which the district
court relied in dismissing the petition. We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253, and we affirm.
Under 28 U.S.C. § 2254, district courts have jurisdiction over habeas
petitions only if the petitioner is “‘in custody’ under the conviction or sentence
under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488,
490–91 (1989) (per curiam). It is undisputed that Manunga completed her
sentence for the challenged 2010 conviction by March 18, 2011. Thus, she was not
“in custody” under the 2010 conviction at the time she filed her 2014 petition.
Manunga argues the district court had jurisdiction because when she filed
her petitions, she was on probation as part of her sentence under the 2012
conviction – a sentence, Manunga contends, that was enhanced by her prior 2010
conviction. This argument fails. Assuming arguendo that Manunga’s sentence
under the 2012 conviction had been enhanced by her 2010 conviction, this does not
mean she was “in custody” pursuant to the 2010 conviction. See Lackawanna Cty.
2
Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) (“[R]espondent was not ‘in
custody’ on his 1958 conviction merely because that [prior] conviction had been
used to enhance a subsequent sentence.”); Maleng, 490 U.S. at 492-93 (explaining
that when a prior conviction is used to enhance the sentence for a subsequent
conviction, “it is pursuant to the second conviction that the petitioner is
incarcerated and is therefore ‘in custody’”). Section 2254 requires that the
petitioner be in custody “under the conviction or sentence under attack,” id. at 490(emphasis added), and Manunga is not attacking her 2012 conviction. See
Lackawanna, 532 U.S. at 401 (holding that where the petitioner was “no longer
serving the sentences imposed pursuant to his 1986 convictions . . . [he] cannot
bring a federal habeas petition directed solely at those convictions”). Thus,
Manunga’s probationary status under her sentence for the 2012 conviction did not
render her “in custody” for the purpose of challenging the 2010 conviction at issue
here.
3
Because Manunga was not in custody under the challenged 2010 conviction
when she filed her habeas petition, the district court did not err in dismissing her
petition for lack of jurisdiction.1
AFFIRMED.
1
We do not reach the district court’s alternative grounds for dismissal.
See Bailey v. Hill, 599 F.3d 976, 984 n.7 (9th Cir. 2010) (“Because there is no
habeas jurisdiction, we do not reach or decide Bailey’s remaining arguments or the
merits of Bailey’s petition.”).
4