Torres v. Kernan

• Court: District Court, N.D. California
• Decided: April 25, 2023
• Docket: 5:22-cv-09112
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MARIO TORRES, Case No. 22-cv-09112 BLF (PR) 11 Petitioner, ORDER OF DISMISSAL; DENYING 12 CERTIFICATE OF v. APPEALABILITY; GRANTING 13 MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS; 14 DENYING OTHER MOTION AS SCOTT KERNAN, MOOT 15 Respondent. 16 (Docket Nos. 2, 9)

17 18 Petitioner, a former state prisoner, filed a pro se petition for a writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254, challenging his state conviction out of Contra Costa County 20 Superior Court. Dkt. No. 1. Petitioner filed a motion for leave to proceed in forma 21 pauperis. Dkt. No. 2. This matter was reassigned to the Undersigned on January 26, 2023. 22 Dkt. Nos. 7, 8. For the reasons discussed below, the instant petition must be dismissed. 23 24 DISCUSSION 25 This court may entertain a petition for a writ of habeas corpus “in behalf of a person 26 in custody pursuant to the judgment of a State court only on the ground that he is in 27 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 1 why the writ should not be granted unless it appears from the application that the applicant 2 or person detained is not entitled thereto.” Id. § 2243. 3 The federal writ of habeas corpus is only available to persons “in custody” at the 4 time the petition is filed. See 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 5 U.S. 234, 238 (1968). This requirement is jurisdictional. Id. A habeas petitioner must be 6 in custody under the conviction or sentence under attack at the time the petition is filed. 7 Maleng v. Cook, 490 U.S. 488, 490-91 (1989). A petitioner who files a habeas petition 8 after he has fully served his sentence and who is not subject to court supervision is not “in 9 custody” for the purposes of this court’s subject matter jurisdiction and his petition is 10 therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 11 1990). 12 Petitioner filed this habeas action on December 27, 2022. Dkt. No. 1. According to 13 the petition, Petitioner was sentenced on or about February 5, 2015, for an unknown term, 14 after entering a plea agreement. Dkt. No. 1 at 1, 2. Petitioner indicates that he is no longer 15 confined and completed parole in September 2022. Id. Accordingly, Petitioner was 16 clearly not “in custody” when he filed this action a few months after he completed parole. 17 Therefore, this petition must be dismissed for lack of jurisdiction. See De Long, 912 F.2d 18 at 1146. 19 20 CONCLUSION 21 For the foregoing reasons, this petition is DISMISSED for lack of jurisdiction. No 22 certificate of appealability is warranted in this case because a reasonable jurist would not 23 find the dismissal of this petition debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 24 484 (2000). 25 Petitioner’s motion for leave to proceed in forma pauperis is GRANTED. Dkt. No. 26 2. Petitioner’s “request for order” is DENIED as moot. Dkt. No. 9. 1 IT IS SO ORDERED. 2 |) Dated: __April 25,2023 Alinfacicen_ BETH LABSON FREEMAN 3 United States District Judge 4 5 6 7 8 9 10 11 12

2B 15

Oo 4 18 19 20 21 22 23 24 25 Order of Dismissal; Grant IFP; Deny Other Mot. P:\PRO-SE\EJD\HC.22\09112Torres_dism(custody).docx 26 27