Matthews v. Escuro

• Court: District Court, S.D. California
• Decided: November 30, 2021
• Docket: 3:21-cv-01436
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MATTHEWS, Case No.: 3:21-cv-1436-L-RBB

12 Petitioner, ORDER ON MOTION TO 13 v. WITHDRAW AS COUNSEL AND OSC 14 ESCURO, et al., 15 Respondents. 16 17 Pending before the Court is a motion to withdraw as Petitioner’s counsel. (ECF 9). 18 The record does not show counsel served Petitioner with the motion. Id. The Court 19 therefore DENIES it without prejudice. See Civ. L. R. 83.3. 20 There is an outstanding Order to Show Cause. (ECF 2). Petitioner’s counsel was 21 ordered to indicate whether Petitioner authorized them to file the petition. Id.; (ECF 1) 22 (“Petitioner has given no indication to undersigned counsel as to whether he wishes that 23 such a petition be filed.”) Petitioner, after several months, failed to show he authorized 24 this action. (ECFs 2, 4, 6, and 8); (see Docket). 25 The Court also ordered Petitioner to show why it should not dismiss the petition 26 because the petition did not indicate they were in custody. (ECF 2). The “in custody” 27 requirement is jurisdictional, and “therefore it is the first question [the Court] must 28 consider.” Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (internal quotation marks and 1 || citation omitted). There is nothing to indicate the custody requirement was met. Per 2 || Petitioner’s counsel, “there is no non-frivolous argument to make regarding [Petitioner’s] 3 || custody status, as [Petitioner] is currently no longer on mandatory supervision.” (ECF 9). 4 || And Petitioner does not contend he was on mandatory supervision when the petition was 5 || filed. 6 For the above reasons, the Court DISMISSES the petition WITHOUT 7 || PREJUDICE. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (it is a jurisdictional 8 requirement that “the habeas petitioner be ‘in custody’ under the conviction or sentence 9 || under attack at the time his petition is filed.”); Bailey, 599 F.3d at 979-81 (fines, fees, and 10 restitution are insufficient to meet section 2254(a)’s custody requirement); see 28 U.S.C. 11 |} § 2242; Rule 2(c)(5), Rules Governing Section 2254 Cases; Hendricks v. Vasquez, 908 12 || F.2d 490, 491 (9th Cir. 1990) (court may dismiss an unsigned or unverified petition); see 13 || Lucky v. Calderon, 86 F.3d 923, 925 (9th Cir. 1996) (petitioner’s “repeated failures to 14 ||respond to his attorney in any way, combined with his lack of verification and signature, 15 ||rebutted the presumption that he consented to the petition.”) 16 IT IS SO ORDERED. 17 || Dated: November 30, 2021 fee ep 19 H . James Lorenz United States District Judge 20 21 22 23 24 25 26 27 28