Roach v. Attorney General

• Court: District Court, W.D. Washington
• Decided: June 7, 2023
• Docket: 3:23-cv-05446
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOHN EDWARD ROACH, CASE NO. 3:23-cv-05446-BHS-GJL 11 Petitioner, v. ORDER TO SHOW CAUSE 12 ATTORNEY GENERAL, 13 Respondent. 14

15 16 The District Court has referred this Petition for writ of habeas corpus to United States 17 Magistrate Judge Grady J. Leupold. The Court’s authority for the referral is 28 U.S.C. § 18 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. 19 Petitioner John Edward Roach, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 20 2254. Dkt. 1. Petitioner has paid the filing fee. See id. Because it appears Petitioner may not be 21 in custody as required by § 2254, the Court directs Petitioner to show cause why the Court 22 should not recommend dismissal of this habeas Petition for lack of subject matter jurisdiction. 23 /// 24 1 Pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254, 2 when a petition is filed: 3 The clerk must promptly forward the petition to a judge under the court’s assignment procedure, and the judge must promptly examine it. If it plainly appears 4 from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify 5 the petitioner.

6 In order to acquire habeas relief pursuant to § 2254, the petitioner must be “in custody 7 pursuant to the judgment of a State court . . . .” 28 U.S.C. § 2254(a). Failure to show the 8 petitioner is in custody deprives the district court of subject matter jurisdiction. Maleng v. Cook, 9 490 US. 488, 490 (1989). A petitioner is “in custody” when the petitioner “is subject to a 10 significant restraint upon his liberty ‘not shared by the public generally.’” Wilson v. Belleque, 11 554 F.3d 816, 822 (9th Cir. 2009) (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)). 12 The Supreme Court has recognized that individuals such as parolees and convicts released on 13 their own recognizance pending sentencing are “in custody” for purposes of habeas corpus. 14 Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) (citing Jones v. Cunningham, 371 15 U.S. 236, 243 (1963); Hensley v. Municipal Court, 411 U.S. 345, 351 (1973)). However, the 16 Ninth Circuit has held that “the Washington sex offender law [which requires individuals 17 convicted of certain crimes to register as sex offenders] does not place [a petitioner] ‘in custody’ 18 for purposes of federal habeas corpus.” Williamson, 151 F.3d at 1184. 19 Here, Petitioner does not list a “Place of Confinement” in his Petition, but includes a 20 “Prisoner No.” on the form. Dkt. 1 at 1. He also lists a residential address in Puyallup, 21 Washington, with his signature. Id. at 15. Petitioner has included no other information indicating 22 whether he is physically incarcerated in prison or otherwise restrained pursuant to parole or 23 community custody. Because Petitioner has listed a residential address as his location and only 24 1 implied that he is “in custody” by providing a ”Prisoner No.” (see id. at 1, 15), the Court finds 2 that Petitioner has not yet shown he is “in custody” within the meaning of § 2254. Thus, the 3 Court finds that it may not have subject matter jurisdiction to make a determination as to this 4 habeas Petition on the merits.

5 Therefore, it is ORDERED: 6 Petitioner must SHOW CAUSE on or before July 7, 2023, why the Court should not 7 recommend his habeas Petition be dismissed for lack of subject matter jurisdiction because 8 Petitioner is not “in custody” within the meaning of § 2254. 9 Dated this 7th day of June, 2023. 10 A 11 12 Grady J. Leupold United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24