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Maciel v. Cate

United States Court of Appeals, Ninth Circuit

September 25, 2013

James D. MACIEL, Petitioner-Appellant,
Matthew L. CATE; J. Flores, Respondents-Appellees.

Argued and Submitted July 9, 2013.

Page 929

[Copyrighted Material Omitted]

Page 930

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.



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 tat 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.

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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. [1] See Cal.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


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).

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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 ...

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