1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VINOD RAO, Case No.: 24cv1716 RSH (MSB)
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE
14 VISTA SUPERIOR COURT, 15 Respondent. 16 17 Petitioner, a detainee in the custody of the Department of Homeland Security, 18 Bureau of Immigration and Customs Enforcement, proceeding pro se, has filed a Petition 19 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a San Diego 20 Superior Court judgment of conviction and resultant sentence to two years of probation. 21 ECF No. 1. For the reasons discussed below, the Court dismisses the case without 22 prejudice. 23 I. FAILURE TO SATISFY THE FILING FEE REQUIREMENT 24 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 25 forma pauperis. The Court cannot proceed until Petitioner has either paid the $5.00 filing 26 fee or has qualified to proceed in forma pauperis. See R. 3(a), Rules Governing Section 27 2254 Cases (2019). As such, the instant case is subject to dismissal for failure to satisfy the 28 filing fee requirement. 1 II. BASIS FOR PETITION 2 In the Petition, Petitioner alleges his federal constitutional rights have been violated 3 due to ineffective assistance of counsel and a rushed process as to his judgment and appears 4 to allege that judgment could have been expunged after the completion of probation as part 5 of the plea deal in that case. See ECF No. 1 at 6-8. However, upon review, Petitioner is not 6 currently in custody pursuant to a judgment of a state court, as he is currently in the custody 7 of federal immigration authorities. See id. at 5, 13. Moreover, it appears Petitioner has 8 completed his probation sentence arising from the state court judgment he is attempting to 9 challenge, as documents attached to the Petition reflect his probation sentence expired on 10 March 6, 2024. See id. at 12. Thus, any federal habeas challenge to Petitioner’s current 11 detention is properly brought under 28 U.S.C. § 2241, not 28 U.S.C. § 2254. As the Ninth 12 Circuit has explained: 13 Section 2254 is properly understood as “in effect implement(ing) the general grant of habeas corpus authority found in § 2241, as long as the person is in 14 custody pursuant to the judgment of a state court, and not in state custody for 15 some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a conviction. 16
17 White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (quoting Walker v. O’Brien, 216 18 F.3d 626, 633 (7th Cir. 2000) (additional citations omitted)). 19 “Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C. 20 § 2254(a), is limited to those persons ‘in custody pursuant to the judgment of a State.’” 21 Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C. § 2241(c)(3). It is a 22 jurisdictional requirement that, at the time a habeas petition is filed, “the habeas petitioner 23 be ‘in custody’ under the conviction or sentence under attack.” Maleng v. Cook, 490 U.S. 24 488, 490-91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see Carafas v. LaVallee, 25 391 U.S. 234, 238 (1968). 26 Here, Petitioner may not challenge the constitutional validity of his 2-year probation 27 sentence via a § 2254 petition because he was no longer in actual custody pursuant to that 28 conviction and does not show he was in constructive custody (e.g., parole or probation) at 1 the time he constructively filed the Petition in this case on September 16, 2024. See Brock, 2 31 F.3d at 889. “[O]nce the sentence imposed for a conviction has completely expired, the 3 collateral consequences of that conviction are not themselves sufficient to render an 4 individual ‘in custody’ for the purposes of a habeas attack upon it.” Maleng, 490 U.S. at 5 492; see Feldman v. Perrill, 902 F.2d 1445, 1448 (9th Cir. 1990) (stating that an expired 6 conviction cannot satisfy the “in custody” requirement). 7 Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of a 8 habeas petition “[i]f it plainly appears from the face of the petition and any attached 9 exhibits that the petitioner is not entitled to relief in the district court. . . .” R. 4, Rules 10 Governing Section 2254 Cases (2019). Here, it is plain from the Petition that Petitioner is 11 not presently entitled to federal habeas relief because he was not in the custody of the State 12 of California when he filed his § 2254 Petition in this Court. Accordingly, the Court must 13 dismiss the action. 14 III. FAILURE TO NAME A PROPER RESPONDENT 15 In addition, Petitioner has failed to name a proper respondent. The federal habeas 16 statute provides that the respondent to a habeas application is “the person who has custody 17 over him.” 28 U.S.C. § 2242; see also 28 U.S.C. § 2243 (“The writ, or order to show cause 18 shall be directed to the person having custody of the person detained.”) “[I]n habeas 19 challenges to present physical confinement—‘core challenges’—the default rule is that the 20
21 1 The Petition is filed-stamped September 23, 2024, and while Petitioner signed and 22 dated the federal Petition on September 16, 2024, he did not indicate on the Petition or 23 attachments when he handed it to correctional officers for mailing to the Court. (See ECF No. 1 at 11; see ECF No. 1 generally.) Even were the Court to give Petitioner the benefit 24 of the “mailbox rule” and consider the filing date of the Petition to be the earlier of those 25 two dates, it would make no difference to the outcome, given available records reflect the expiration of Petitioner’s probation was over six months ago. (See id. at 12); see Huizar v. 26 Carey, 273 F.3d 1220, 1222 (9th Cir. 2001) (“Under the ‘prison mailbox rule’ of Houston 27 v. Lack, 487 U.S. 266 (1988), a prisoner’s federal habeas petition is deemed filed when he hands it over to prison authorities for mailing to the district court.”) (internal citations 28 1 || proper respondent is the warden of the facility where the prisoner is being held, not the 2 || Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 3 || 426, 435 (2004) (citations omitted). Here, Petitioner has improperly named “Vista Superior 4 ||Court” as Respondent. ECF No. | at 1. In order to proceed on federal habeas, whether 5 || pursuant to § 2254 or § 2241, Petitioner must name as Respondent the official in charge of 6 || the facility in which he is currently confined.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VINOD RAO, Case No.: 24cv1716 RSH (MSB)
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE
14 VISTA SUPERIOR COURT, 15 Respondent. 16 17 Petitioner, a detainee in the custody of the Department of Homeland Security, 18 Bureau of Immigration and Customs Enforcement, proceeding pro se, has filed a Petition 19 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a San Diego 20 Superior Court judgment of conviction and resultant sentence to two years of probation. 21 ECF No. 1. For the reasons discussed below, the Court dismisses the case without 22 prejudice. 23 I. FAILURE TO SATISFY THE FILING FEE REQUIREMENT 24 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 25 forma pauperis. The Court cannot proceed until Petitioner has either paid the $5.00 filing 26 fee or has qualified to proceed in forma pauperis. See R. 3(a), Rules Governing Section 27 2254 Cases (2019). As such, the instant case is subject to dismissal for failure to satisfy the 28 filing fee requirement. 1 II. BASIS FOR PETITION 2 In the Petition, Petitioner alleges his federal constitutional rights have been violated 3 due to ineffective assistance of counsel and a rushed process as to his judgment and appears 4 to allege that judgment could have been expunged after the completion of probation as part 5 of the plea deal in that case. See ECF No. 1 at 6-8. However, upon review, Petitioner is not 6 currently in custody pursuant to a judgment of a state court, as he is currently in the custody 7 of federal immigration authorities. See id. at 5, 13. Moreover, it appears Petitioner has 8 completed his probation sentence arising from the state court judgment he is attempting to 9 challenge, as documents attached to the Petition reflect his probation sentence expired on 10 March 6, 2024. See id. at 12. Thus, any federal habeas challenge to Petitioner’s current 11 detention is properly brought under 28 U.S.C. § 2241, not 28 U.S.C. § 2254. As the Ninth 12 Circuit has explained: 13 Section 2254 is properly understood as “in effect implement(ing) the general grant of habeas corpus authority found in § 2241, as long as the person is in 14 custody pursuant to the judgment of a state court, and not in state custody for 15 some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a conviction. 16
17 White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (quoting Walker v. O’Brien, 216 18 F.3d 626, 633 (7th Cir. 2000) (additional citations omitted)). 19 “Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C. 20 § 2254(a), is limited to those persons ‘in custody pursuant to the judgment of a State.’” 21 Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C. § 2241(c)(3). It is a 22 jurisdictional requirement that, at the time a habeas petition is filed, “the habeas petitioner 23 be ‘in custody’ under the conviction or sentence under attack.” Maleng v. Cook, 490 U.S. 24 488, 490-91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see Carafas v. LaVallee, 25 391 U.S. 234, 238 (1968). 26 Here, Petitioner may not challenge the constitutional validity of his 2-year probation 27 sentence via a § 2254 petition because he was no longer in actual custody pursuant to that 28 conviction and does not show he was in constructive custody (e.g., parole or probation) at 1 the time he constructively filed the Petition in this case on September 16, 2024. See Brock, 2 31 F.3d at 889. “[O]nce the sentence imposed for a conviction has completely expired, the 3 collateral consequences of that conviction are not themselves sufficient to render an 4 individual ‘in custody’ for the purposes of a habeas attack upon it.” Maleng, 490 U.S. at 5 492; see Feldman v. Perrill, 902 F.2d 1445, 1448 (9th Cir. 1990) (stating that an expired 6 conviction cannot satisfy the “in custody” requirement). 7 Rule 4 of the Rules Governing § 2254 Cases provides for summary dismissal of a 8 habeas petition “[i]f it plainly appears from the face of the petition and any attached 9 exhibits that the petitioner is not entitled to relief in the district court. . . .” R. 4, Rules 10 Governing Section 2254 Cases (2019). Here, it is plain from the Petition that Petitioner is 11 not presently entitled to federal habeas relief because he was not in the custody of the State 12 of California when he filed his § 2254 Petition in this Court. Accordingly, the Court must 13 dismiss the action. 14 III. FAILURE TO NAME A PROPER RESPONDENT 15 In addition, Petitioner has failed to name a proper respondent. The federal habeas 16 statute provides that the respondent to a habeas application is “the person who has custody 17 over him.” 28 U.S.C. § 2242; see also 28 U.S.C. § 2243 (“The writ, or order to show cause 18 shall be directed to the person having custody of the person detained.”) “[I]n habeas 19 challenges to present physical confinement—‘core challenges’—the default rule is that the 20
21 1 The Petition is filed-stamped September 23, 2024, and while Petitioner signed and 22 dated the federal Petition on September 16, 2024, he did not indicate on the Petition or 23 attachments when he handed it to correctional officers for mailing to the Court. (See ECF No. 1 at 11; see ECF No. 1 generally.) Even were the Court to give Petitioner the benefit 24 of the “mailbox rule” and consider the filing date of the Petition to be the earlier of those 25 two dates, it would make no difference to the outcome, given available records reflect the expiration of Petitioner’s probation was over six months ago. (See id. at 12); see Huizar v. 26 Carey, 273 F.3d 1220, 1222 (9th Cir. 2001) (“Under the ‘prison mailbox rule’ of Houston 27 v. Lack, 487 U.S. 266 (1988), a prisoner’s federal habeas petition is deemed filed when he hands it over to prison authorities for mailing to the district court.”) (internal citations 28 1 || proper respondent is the warden of the facility where the prisoner is being held, not the 2 || Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 3 || 426, 435 (2004) (citations omitted). Here, Petitioner has improperly named “Vista Superior 4 ||Court” as Respondent. ECF No. | at 1. In order to proceed on federal habeas, whether 5 || pursuant to § 2254 or § 2241, Petitioner must name as Respondent the official in charge of 6 || the facility in which he is currently confined. See 28 U.S.C. §§ 2242, 2243. 7 Accordingly, the instant Petition is also subject to dismissal for failure to name a 8 || proper Respondent. 9 CONCLUSION 10 For the reasons discussed above, the Court DISMISSES the case without prejudice.’ 11 || The Clerk of Court is DIRECTED to close the case. 12 IT IS SO ORDERED. l f l . 3 || Dated: October 2, 2024 ekut c 14 15 Hon. Robert S. Huie United States District Judge 16 17 18 19 20 21 | 22 The Court would ordinarily direct the Clerk to send Petitioner a blank In Forma 23 || Pauperis Application and a blank 28 U.S.C. § 2241 Habeas Petition form together with a copy of this Order, but such action appears unnecessary in this instance given Petitioner has recently filed two separate habeas cases pursuant to 28 U.S.C. § 2241 challenging his 25 || federal detention, of which the Court takes judicial notice. See ECF No. 1 in So. Dist. Ca. 26 Case No. 24cv1562 AGS (AHG) (filed Aug. 30, 2024), ECF No. 1 in So. Dist. Ca. Case No. 24cv1576 AJB (BLM) (filed Aug. 30, 2024); see United States v. Raygoza-Garcia, 27 || 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records available through PACER.”) (citing Fed. R. Evid. 201(b) and United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004)).