United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Petitioner Victor Pianka, who is confined in the Eloy Detention Center, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and a Motion to Appoint Counsel (Doc. 2), and has paid the $5.00 filing fee. The Court will dismiss the motion and will dismiss the Petition with leave to amend.
Pursuant to a plea agreement, Petitioner was convicted in Maricopa County Superior Court, case #CR XXXX-XXXXXX, of possession of drug paraphernalia and was sentenced to a term of probation of 18 months. Petitioner filed a petition for Post-Conviction Relief, which was denied as untimely. In his Petition, Petitioner names Charles De Rosa as Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner raises seven grounds for relief:
1) Defense counsel was ineffective when she failed to advise Petitioner of the immigration consequences of his guilty plea, in violation of Petitioner's Sixth Amendment rights.
2) Petitioner was actually innocent and "no reasonable juror would [have] convicted [him]."
3) Petitioner was coerced into pleading guilty.
4) Defense counsel had a conflict of interest and "was not representing [Petitioner's] interests" during the criminal proceedings.
5) Plaintiff's Fourth Amendment rights were violated because there was no probable cause or reasonable suspicion to arrest him.
6) The prosecutor engaged in misconduct, which violated Petitioner's due process rights.
7) The trial court abused its discretion when it failed to dismiss the charges against Petitioner based on the lack of evidence.
In his request for relief, Petitioner asks that the Court vacate his conviction, place him in witness protection, and "convict the people that have been persecuting [him] for 15 years unrelentlessly."
II. The "In Custody" Requirement of § 2254
Federal habeas relief under § 2254 is available "only on the ground that [an inmate] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The United States Supreme Court has interpreted "the statutory language as requiring that the habeas petitioner be in custody' under the conviction or sentence under attack at the time his petition is filed, " although he need not be physically confined to challenge a sentence on habeas corpus. Maleng v. Cook, 490 U.S. 488, 491 (1989) (an expired conviction can never satisfy the "in custody" requirement, even if it is used to enhance a subsequent sentence); Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005) (petitioner was "in custody" while he remained subject to probation under the conviction or sentence at the time he filed his habeas petition); Fowler v. Sacramento County Sheriff's Dep't, 421 F.3d 1027, 1033 (9th Cir. 2005). "A criminal sentence - unlike the underlying convictions... - carries no presumption of collateral consequences. Thus, a habeas [corpus] petitioner must show some concrete and continuing injury other than the now-ended incarceration or parole... if the suit is to be maintained.'" Maciel v. Cate, 731 F.3d 928, 931 (9th Cir. 2013) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
Petitioner is attempting to challenge his 2012 state court conviction for possession of drug paraphernalia in which he was sentenced to 18 months of probation. According to available online records, Petitioner's probation terminated on January 18, 2014. Petitioner does not allege that he was serving a sentence for that conviction when he commenced this case on December 18, 2014. Nor does Petitioner allege collateral consequences stemming from that conviction to show that he remained "in custody" as to that conviction when he commenced this case. Accordingly, the Court will dismiss the Petition with leave to file a first amended petition in which Petitioner alleges facts to support that he ...