Robert Garber v. The Superior Court of Los Angeles County et al

Filing 5

ORDER TO SHOW CAUSE by Magistrate Judge Robert N. Block. It Therefore Is Ordered that, on or before 10/22/10, petitioner show cause in writing, if any he has, why this action should not be summarily dismissed for lack of subject matter jurisdiction. Response to Order to Show Cause due by 10/22/2010. (twdb)

-RNB Robert Garber v. The Superior Court of Los Angeles County et al

Doc. 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 vs. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. ROBERT GARBER, Petitioner, ) Case No. CV 10-6694-DDP (RNB) ) ) ) ORDER TO SHOW CAUSE ) ) ) ) ) )

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

On September 24, 2010, petitioner filed a Petition for Writ of Habeas Corpus

18 by a Person in State Custody herein. It appears from the face of the Petition that it is 19 directed to a conviction sustained in Los Angeles County Superior Court on March 20 14, 2007, for which petitioner was sentenced on March 17, 2007 to a probationary 21 term of five years. It further appears from the face of the Petition that the California 22 Court of Appeal subsequently reduced petitioner's probationary term to three years. 23 Subject matter jurisdiction over a habeas petition exists only when, at the time 24 the petition is filed, the petitioner is "in custody" under the conviction challenged in 25 the petition. See Maleng v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923, 104 L. Ed. 26 2d 540 (1989); Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 20 L. Ed. 2d 27 554 (1968); Fowler v. Sacramento County Sheriff's Dep't, 421 F.3d 1027, 1033 n.5 28 (9th Cir. 2005); see also 28 U.S.C. §§ 2241(c)(3), 2254(a). A habeas petitioner does 1

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1 not remain "in custody" once the sentence imposed for the conviction has "fully 2 expired." See Maleng, 490 U.S. at 491. However, a petitioner is "in custody" for the 3 purposes of habeas jurisdiction while he remains on probation. See Chaker v. Crogan, 4 428 F.3d 1215, 1219 (9th Cir. 2005); Fowler, 421 F.3d at 1033 n.5; United States v. 5 Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988). 6 The burden of establishing subject matter jurisdiction rests with the party 7 seeking to invoke the district court's jurisdiction. See, e.g., Ashoff v. City of Ukiah, 8 130 F.3d 409, 410 (9th Cir. 1997); Thornhill Pub. Co. v. General Tel. & Elec. Corp., 9 594 F.2d 730, 733 (9th Cir. 1979); Johnson v. Washington, 2009 WL 151284, *6 10 (W.D. Wash. Jan. 20, 2009) (habeas case). Moreover, the absence of subject matter 11 jurisdiction may be raised by a district court sua sponte. See Schwarzer, Tashima & 12 Wagstaffe, Federal Civil Procedure Before Trial ¶ 2:18 (2010 rev. ed.). 13 Here, the Court notes that, if petitioner's three-year probationary term is 14 measured from March 17, 2007, the date of his sentence, petitioner no longer was on 15 probation on September 24, 2010, when he filed the Petition herein. It therefore 16 appears to the Court that the Petition is subject to dismissal for lack of subject matter 17 jurisdiction. See Reiner v. Remington, 217 Fed. Appx. 681, 682 (9th Cir. 2007) (now 18 citable for its persuasive value pursuant to Ninth Circuit Rule 36-3) (affirming district 19 court's dismissal of habeas petition for lack of subject matter jurisdiction where the 20 petitioner's probation expired prior to the filing of the petition). 21 IT THEREFORE IS ORDERED that, on or before October 22, 2010, petitioner 22 show cause in writing, if any he has, why this action should not be summarily 23 dismissed for lack of subject matter jurisdiction. 24 25 DATED: September 30, 2010 26 27 28 ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE 2