11 LEONARD LOUIE OCHOA, Case No. 2:19-cv-08437-MWF-KES
12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE
14 A. CARDENAS, Warden, DISMISSED FOR LACK OF JURISDICTION 15 Respondent.
17 I.
19 On September 30, 2019, Petitioner Leonard Louie Ochoa (“Petitioner”)
20 constructively filed a Petition for Writ of Habeas Corpus by a Person in State 21 Custody pursuant to 28 U.S.C. § 2254.1 (Dkt. 1 [“Petition”].) Petitioner alleges 22 that the “S.F. Courthouse Clerk” lost his “Application/Petition for resentencing” 23 and “Response” under Cal. Penal Code § 1170.18(b), (g). (Id. at 5.) Petitioner then 24 argues that the discovery of new evidence, pursuant to Fed. R. Civ. P. 60(b), applies 25 1 Petitioner most recently brought a petition under 28 U.S.C. § 2241 on July 30, 26 2019, which the Court construed as a petition under 28 U.S.C. § 2254, because 27 Petitioner was previously in state custody pursuant to a state conviction; Petitioner voluntarily dismissed the petition. Central District Case No. 2:19-cv-06686. 28 1 to his petition.2 (Id. at 5-6.) Plaintiff appears to allege that he was released from 2 state custody on September 20, 2017, and that he has completed his parole. (Id. at 3 1.) 4 Pursuant to its screening authority under Rule 4 of the Rules Governing 5 Section 2254 Cases in the United States District Courts3 and its obligation to 6 consider sua sponte requirements concerning subject matter jurisdiction, Belgarde 7 v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997), the Court orders Petitioner to 8 show cause why this action should not be dismissed for lack of jurisdiction. 9 II. 11 A. Legal Standard. 12 Under § 2254 “a district court shall entertain an application for a writ of 13 habeas corpus in behalf of a person in custody pursuant to the judgment of a State 14 court only on the ground that he is in custody in violation of the Constitution or 15 laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because the “in 16 custody” requirement of § 2254(a) is jurisdictional, the Court must consider it first. 17 See Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (citing Williamson v. 18 Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998)). 19 Section 2254(a) uses the term “in custody” twice, with two different 20 requirements. Id. The first usage (i.e., that the petition be filed “in behalf of a 21 person in custody”) requires that the petitioner is “under the conviction or sentence 22
23 2 In support, Petitioner cites: Engleson v. Burlington N. R. Co., 972 F.2d 1038, 1044 (9th Cir. 1992); Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007); People v. 24 Gallardo, 77 Cal. App. 4th 971 (2000); In re Richards, 63 Cal. 4th 291, 312 (2016); 25 and Cal. Penal Code § 1473(e)(1). (Dkt. 1 at 5-6.) 3 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 26 Courts provides: “If it plainly appears from the petition and any attached exhibits 27 that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition ….” 28 1 under attack at the time his petition is filed.” Id. at 978-79, 983 n.6 (quoting 2 Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005)). The custody 3 requirement does not require that a prisoner be physically confined, Maleng v. 4 Cook, 490 U.S. 488, 491 (1989), but it does require a “severe restraint” on the 5 petitioner’s liberty, Bailey, 599 F.3d at 980. Thus, for example, a petitioner who is 6 on parole at the time of filing is considered to be in custody, see Gordon v. Duran, 7 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on probation, see Chaker v. 8 Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). A petitioner who files a habeas 9 petition after he has fully served his sentence and who is not subject to court 10 supervision is not “in custody” for the purposes of the court’s subject matter 11 jurisdiction and his petition is therefore properly denied. See De Long v. 12 Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). 13 The second usage (i.e., that the application may be entertained “only on the 14 ground that he is in custody in violation of the Constitution or laws or treaties of the 15 United States”) requires “a nexus between the petitioner’s claim and the unlawful 16 nature of the custody.” Bailey, 599 F.3d at 978-80. In other words, success on the 17 claim must result in a change in the restraint on the petitioner’s liberty. Id. at 980; 18 see also Heck v. Humphrey, 512 U.S. 477, 481-83 (1994) (habeas corpus claims 19 that do not “call into question the lawfulness of the conviction or confinement[,]” 20 challenge the fact or duration of the petitioner’s custody, or “seek[] immediate or 21 speedier release,” are not cognizable under § 2254). 22 The Petition now pending is governed by 28 U.S.C. § 2244(b), which 23 provides in pertinent part as follows: 24 (b)(1) A claim presented in a second or successive habeas corpus application 25 under section 2254 that was presented in a prior application shall be 26 dismissed. 27 (2) A claim presented in a second or successive habeas corpus application 28 under section 2254 that was not presented in a prior application shall be 1 dismissed unless-- 2 (A) the applicant shows that the claim relies on a new rule of 3 constitutional law, made retroactive to cases on collateral review by the 4 Supreme Court, that was previously unavailable; or 5 (B)(i) the factual predicate for the claim could not have been 6 discovered previously through the exercise of due diligence; and 7 (ii) the facts underlying the claim, if proven and viewed in light of the 8 evidence as a whole, would be sufficient to establish by clear and convincing 9 evidence that, but for constitutional error, no reasonable factfinder would 10 have found the applicant guilty of the underlying offense. (3)(A) Before a second or successive application permitted by this section is 11 filed in the district court, the applicant shall move in the appropriate court of 12 appeals for an order authorizing the district court to consider the application. 13 28 U.S.C. § 2244(b) (emphasis added). 14 B. Analysis. 15 1. Petitioner Is Not In Custody. 16 In this case, it does not appear that Petitioner is in state custody.
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11 LEONARD LOUIE OCHOA, Case No. 2:19-cv-08437-MWF-KES
12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE
14 A. CARDENAS, Warden, DISMISSED FOR LACK OF JURISDICTION 15 Respondent.
17 I.
19 On September 30, 2019, Petitioner Leonard Louie Ochoa (“Petitioner”)
20 constructively filed a Petition for Writ of Habeas Corpus by a Person in State 21 Custody pursuant to 28 U.S.C. § 2254.1 (Dkt. 1 [“Petition”].) Petitioner alleges 22 that the “S.F. Courthouse Clerk” lost his “Application/Petition for resentencing” 23 and “Response” under Cal. Penal Code § 1170.18(b), (g). (Id. at 5.) Petitioner then 24 argues that the discovery of new evidence, pursuant to Fed. R. Civ. P. 60(b), applies 25 1 Petitioner most recently brought a petition under 28 U.S.C. § 2241 on July 30, 26 2019, which the Court construed as a petition under 28 U.S.C. § 2254, because 27 Petitioner was previously in state custody pursuant to a state conviction; Petitioner voluntarily dismissed the petition. Central District Case No. 2:19-cv-06686. 28 1 to his petition.2 (Id. at 5-6.) Plaintiff appears to allege that he was released from 2 state custody on September 20, 2017, and that he has completed his parole. (Id. at 3 1.) 4 Pursuant to its screening authority under Rule 4 of the Rules Governing 5 Section 2254 Cases in the United States District Courts3 and its obligation to 6 consider sua sponte requirements concerning subject matter jurisdiction, Belgarde 7 v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997), the Court orders Petitioner to 8 show cause why this action should not be dismissed for lack of jurisdiction. 9 II. 11 A. Legal Standard. 12 Under § 2254 “a district court shall entertain an application for a writ of 13 habeas corpus in behalf of a person in custody pursuant to the judgment of a State 14 court only on the ground that he is in custody in violation of the Constitution or 15 laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because the “in 16 custody” requirement of § 2254(a) is jurisdictional, the Court must consider it first. 17 See Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (citing Williamson v. 18 Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998)). 19 Section 2254(a) uses the term “in custody” twice, with two different 20 requirements. Id. The first usage (i.e., that the petition be filed “in behalf of a 21 person in custody”) requires that the petitioner is “under the conviction or sentence 22
23 2 In support, Petitioner cites: Engleson v. Burlington N. R. Co., 972 F.2d 1038, 1044 (9th Cir. 1992); Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007); People v. 24 Gallardo, 77 Cal. App. 4th 971 (2000); In re Richards, 63 Cal. 4th 291, 312 (2016); 25 and Cal. Penal Code § 1473(e)(1). (Dkt. 1 at 5-6.) 3 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 26 Courts provides: “If it plainly appears from the petition and any attached exhibits 27 that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition ….” 28 1 under attack at the time his petition is filed.” Id. at 978-79, 983 n.6 (quoting 2 Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005)). The custody 3 requirement does not require that a prisoner be physically confined, Maleng v. 4 Cook, 490 U.S. 488, 491 (1989), but it does require a “severe restraint” on the 5 petitioner’s liberty, Bailey, 599 F.3d at 980. Thus, for example, a petitioner who is 6 on parole at the time of filing is considered to be in custody, see Gordon v. Duran, 7 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on probation, see Chaker v. 8 Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). A petitioner who files a habeas 9 petition after he has fully served his sentence and who is not subject to court 10 supervision is not “in custody” for the purposes of the court’s subject matter 11 jurisdiction and his petition is therefore properly denied. See De Long v. 12 Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). 13 The second usage (i.e., that the application may be entertained “only on the 14 ground that he is in custody in violation of the Constitution or laws or treaties of the 15 United States”) requires “a nexus between the petitioner’s claim and the unlawful 16 nature of the custody.” Bailey, 599 F.3d at 978-80. In other words, success on the 17 claim must result in a change in the restraint on the petitioner’s liberty. Id. at 980; 18 see also Heck v. Humphrey, 512 U.S. 477, 481-83 (1994) (habeas corpus claims 19 that do not “call into question the lawfulness of the conviction or confinement[,]” 20 challenge the fact or duration of the petitioner’s custody, or “seek[] immediate or 21 speedier release,” are not cognizable under § 2254). 22 The Petition now pending is governed by 28 U.S.C. § 2244(b), which 23 provides in pertinent part as follows: 24 (b)(1) A claim presented in a second or successive habeas corpus application 25 under section 2254 that was presented in a prior application shall be 26 dismissed. 27 (2) A claim presented in a second or successive habeas corpus application 28 under section 2254 that was not presented in a prior application shall be 1 dismissed unless-- 2 (A) the applicant shows that the claim relies on a new rule of 3 constitutional law, made retroactive to cases on collateral review by the 4 Supreme Court, that was previously unavailable; or 5 (B)(i) the factual predicate for the claim could not have been 6 discovered previously through the exercise of due diligence; and 7 (ii) the facts underlying the claim, if proven and viewed in light of the 8 evidence as a whole, would be sufficient to establish by clear and convincing 9 evidence that, but for constitutional error, no reasonable factfinder would 10 have found the applicant guilty of the underlying offense. (3)(A) Before a second or successive application permitted by this section is 11 filed in the district court, the applicant shall move in the appropriate court of 12 appeals for an order authorizing the district court to consider the application. 13 28 U.S.C. § 2244(b) (emphasis added). 14 B. Analysis. 15 1. Petitioner Is Not In Custody. 16 In this case, it does not appear that Petitioner is in state custody. Petitioner 17 alleges that he was released from state custody in 2017, and the California 18 19 Department of Corrections and Rehabilitation Inmate Locator substantiates this 20 allegation. See https://inmatelocator.cdcr.ca.gov/. Plaintiff attaches to the Petition 21 an order from the Los Angeles Superior Court denying his state habeas petition on 22 February 26, 2018; that court found that Petitioner was in actual or constructive 23 custody in case no. GA084672 at that time.4 (Dkt. 1 at 16.) It is thus unclear 24 whether Petitioner is presently on probation or parole. If not, then the Court lacks 25 4 The Superior Court also determined that case no. PA082307 was dismissed and is 26 not the basis of Petitioner’s custody. (Dkt. 1 at 16.) Petitioner seems to indicate he 27 was released on PA08237 on December 15, 2014, and provides no date information related to GA084672. (Id. at 2.) 28 1 subject matter jurisdiction over the Petition on this basis. 2 Moreover, Petitioner does not allege that he is “in custody in violation of the 3 Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). 4 The Petition does not challenge any aspect of Petitioner’s conviction; nor does it 5 challenge the length of the sentence imposed for that conviction. Rather, Petitioner 6 alleges that the court clerk misplaced documents and attaches exhibits labeled “new 7 evidence” in support. (Dkt. 1 at 5.) Petitioner attaches to his Petition some 8 documents pertaining to more recent events: a letter from the California Department 9 of Justice, dated September 13, 2019, objecting to a subpoena request by Petitioner; 10 a September 25, 2019 letter from the Superior Court of Los Angeles indicating that 11 PA082307 was dismissed pursuant to Cal. Penal Code § 1385 in 2014; and a 12 Petition for Dismissal, filed by Petitioner, dated September 24, 2019. (Id. at 9-13.) 13 2. Petitioner’s Claims Do Not Arise Under Federal Law. 14 Petitioner’s claims do not arise under federal law; in fact, the Petition cites 15 California’s Proposition 47. (Dkt. 1 at 11.) Also, the Petition makes no showing 16 that success would necessarily shorten Petitioner’s confinement. See, e.g., Skinner 17 v. Switzer, 562 U.S. 521, 535 n.13 (2011) (reiterating that “when a prisoner’s claim 18 would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of 19 habeas corpus’” (citation omitted)). 20 3. Petitioner’s Petition is Successive. 21 Although Petitioner’s grounds for relief are unclear, they appear to mirror 22 claims brought in earlier habeas petitions (while Petitioner was confined) and civil 23 rights actions. (See Eastern District Case Nos. 1:15-cv-01632 [civil action, suing 24 Sheriff’s Department over allegedly mistaken detention], 1:15-cv-01769 [habeas 25 petition challenging confinement in case no. GA084672 as erroneous because judge 26 failed to consider missing transcript pages], 1:16-cv-00299 [same]; Central District 27 Case Nos. 2:15-cv-09769 [civil rights action, alleging the Sheriff’s Department 28 1 mistakenly confined him because three pages were missing from a sentencing 2 transcript], 2:16-cv-02222 [habeas petition, challenging confinement on same 3 basis], 2:16-cv-00864 [civil action, challenging confinement on same basis], 2:16- 4 cv-09282 [civil action, suing judge over mistaken detention], 2:17-cv-00403 [civil 5 action, challenging confinement on same basis], 2:17-cv-06257 [same], 2:19-cv- 6 06686 [habeas petition, requesting expungement of case no. GA084672].) 7 In those cases, this Court explained to Petitioner: “the Los Angeles County 8 Superior Court sentenced [Petitioner] to four years for the probation violation (case 9 GA-084672) and dismissed the misdemeanor (case PA-082307). … [Petitioner] 10 was sentenced to four years in the GA case and ordered ‘released’ in the PA case 11 due to its dismissal. [Petitioner] was never ordered released in the GA case.” (See 12 2:17-cv-00403, Dkt. 4.) 13 To the extent Petitioner seeks to raise those same grounds for relief in the 14 instant Petition, his Petition is successive, and he must seek leave to file it from the 15 Ninth Circuit. See Burton v. Stewart, 549 U.S. 147, 153 (2007). Petitioner’s 16 failure to secure an order from the Ninth Circuit would also deprive this Court of 17 subject matter jurisdiction. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 18 2001), cert. denied, 538 U.S. 984 (2003). 19 20 21 22 23 24 25 26 27 28 3 In sum, because it is unclear whether (1) Petitioner is currently in custody or 4 on probation/parole pursuant to the conviction challenged in the Petition, (2) his 5 claims are federal (rather than grounded in state law), (3) his claims would affect 6 the legality/duration of confinement or probation/parole, and (4) his Petition is 7 successive, it appears that this Court lacks subject matter jurisdiction over the 8 action. 9 IT IS HEREBY ORDERED that, on or before November 18, 2019, Petitioner 10 shall do one of the following: (1) show cause why the Petition should not be 11 dismissed for lack of subject matter jurisdiction, or (2) submit a notice voluntarily 12 dismissing this action. The Clerk is directed to provide Petitioner with Form CV- 13 09 for voluntary dismissal and Form 12 for an application for leave to file a second 14 or successive petition with the Ninth Circuit. 15 If Petitioner decides to show cause why his Petition should not be dismissed, 16 he should include in his response: (1) which conviction he is challenging, with 17 conviction case number and date; (2) whether he is currently in custody or on 18 probation under that conviction; and (3) if so, why his custody violates the federal 19 constitution or law. 20 If Petitioner contends that newly discovered evidence justifies his filing of a 21 successive petition, then he may file a voluntary dismissal in this Court and an 22 application for leave to file a successive petition with the Ninth Circuit using Form 23 12. 24 // 25 // 26 // 27 // 28 // 1 The Clerk is directed to send a copy of this Order to Petitioner’s counsel in 2 | his Proposition 47 proceedings, Mark Corti (Cal. Bar No. 224913), at the following 3 | address: Los Angeles County Public Defender, 210 W Temple St 19FL, Los 4 | Angeles, CA 90012. 5 6 DATED: October 17, 2019 7 Vous E 9 _— 76am Sesh KAREN E. SCOTT 10 UNITED STATES MAGISTRATE JUDGE 11 12 | ce: 13 Mark Corti (Cal. Bar No. 224913) 14 | Los Angeles County Public Defender 15 210 W Temple St 19FL Los Angeles, CA 90012 16 17 18 19 20 21 22 23 24 25 26 27 28