McGary v. Linquist

W.D. Washington

McGary v. Linquist

DecidedMay 8, 2023

Docket3:22-cv-05809

StatusUnknown

This text of McGary v. Linquist (McGary v. Linquist) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McGary v. Linquist, (W.D. Wash. 2023).

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Opinion

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 DARNELL OTIS MCGARY, CASE NO. 3:22-cv-05809-JHC 8 Petitioner, ORDER 9 v. 10 MARK LINQUIST, 11 Respondent. 12 13

14 The Court has reviewed the report and recommendation of Magistrate Judge J. Richard 15 Creatura (Dkt. # 23), objections thereto (Dkt. ## 24, 25 & 26), the remaining record, and the 16 applicable law. The Clerk noted this matter for May 12, 2023, Petitioner has filed timely 17 objections, the deadline to object has passed, and the Court may now rule. See Dkt. # 23. Being 18 fully advised, the Court ORDERS as follows: 19 (1) The Court adopts the report and recommendation. The objections do not persuade 20 the court that Judge Creatura incorrectly concluded that Petitioner is not “in custody” within the 21 meaning of 28 U.S.C. § 2254(a). Petitioner refers repeatedly to “Meleng.” Presumably, he is 22 referring to Maleng v. Cook, 490 U.S. 488 (1989) (habeas petitioner could challenge state 23 sentences, even though he was not serving them, because he was incarcerated – on federal 24 l charges). But that case does answer the question posed here, which is answered in Williamson v. 2 Gregoire, 151 F.3d 1180 (9th Cir. 1998) (holding that habeas petitioned who had completed 3 sentence but was required to register as sex offender was not “in custody”). Williamson remains 4 || good law and binds this Court. 5 (2) Petitioner’s federal habeas petition 1s dismissed for lack of subject matter 6 Jurisdiction. 7 (3) Petitioner’s motion for preliminary injunction is denied. 8 9 (4) A certificate of appealability is denied in this case.

10 (5) The Clerk is directed to send copies of this Order to petitioner and counsel for 11 Respondent, and to Judge Creatura. 12 Dated this 8th day of May, 2023. 13 John H. Chun 15 United States District Judge 16 17 18 19 20 21 22 23 24

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 DARNELL OTIS MCGARY, CASE NO. 3:22-cv-05809-JHC 8 Petitioner, ORDER 9 v. 10 MARK LINQUIST, 11 Respondent. 12 13

14 The Court has reviewed the report and recommendation of Magistrate Judge J. Richard 15 Creatura (Dkt. # 23), objections thereto (Dkt. ## 24, 25 & 26), the remaining record, and the 16 applicable law. The Clerk noted this matter for May 12, 2023, Petitioner has filed timely 17 objections, the deadline to object has passed, and the Court may now rule. See Dkt. # 23. Being 18 fully advised, the Court ORDERS as follows: 19 (1) The Court adopts the report and recommendation. The objections do not persuade 20 the court that Judge Creatura incorrectly concluded that Petitioner is not “in custody” within the 21 meaning of 28 U.S.C. § 2254(a). Petitioner refers repeatedly to “Meleng.” Presumably, he is 22 referring to Maleng v. Cook, 490 U.S. 488 (1989) (habeas petitioner could challenge state 23 sentences, even though he was not serving them, because he was incarcerated – on federal 24 l charges). But that case does answer the question posed here, which is answered in Williamson v. 2 Gregoire, 151 F.3d 1180 (9th Cir. 1998) (holding that habeas petitioned who had completed 3 sentence but was required to register as sex offender was not “in custody”). Williamson remains 4 || good law and binds this Court. 5 (2) Petitioner’s federal habeas petition 1s dismissed for lack of subject matter 6 Jurisdiction. 7 (3) Petitioner’s motion for preliminary injunction is denied. 8 9 (4) A certificate of appealability is denied in this case.

10 (5) The Clerk is directed to send copies of this Order to petitioner and counsel for 11 Respondent, and to Judge Creatura. 12 Dated this 8th day of May, 2023. 13 John H. Chun 15 United States District Judge 16 17 18 19 20 21 22 23 24

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McGary v. Linquist, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgary-v-linquist-wawd-2023.

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