Morgan Reece v. Jerry Powers

Filing 24

ORDER TO SHOW CAUSE by Magistrate Judge Charles F. Eick. It is Ordered that within 30 days of the date of this Order, Petitioner shall show cause, if there be any, why the Petition should not be denied and dismissed without prejudice for lack of sub ject jurisdiction. Petitioner shall attempt to show cause by filing a declaration or declarations signed under penalty of perjury establishing the factual bases for the Petition's implicit assertion that, on 11/30/12, Petitioner was "in custody" under the conviction challenged in the Petition. Failure timely to show such cause may result in the denial and dismissal of the Petition.(sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MORGAN REECE,

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Petitioner,
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v.
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JERRY POWERS, Chief Probation )
Officer, Los Angeles County
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Probation Department,
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Respondent.
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NO. CV 12-10231-VAP(E)

ORDER TO SHOW CAUSE

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Federal subject matter jurisdiction over habeas petitions exists

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only where, at the time the petition is filed, the petitioner is “in

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custody” under the conviction challenged in the petition.

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Cook, 490 U.S. 488, 490-91 (1989); 28 U.S.C. §§ 2241(c), 2254(a); see

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Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (“in custody”

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requirement is jurisdictional).

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“in custody” under a conviction once the sentence imposed for the

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conviction has “fully expired.”

Maleng v.

A habeas petitioner does not remain

Maleng v. Cook, 490 U.S. at 492.

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The Petition, filed November 30, 2012, challenges a state court
conviction for which Petitioner reportedly received a June 8, 2010

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sentence of “one year home probation” (Petition at 2).

Other

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documents filed by Petitioner, however, appear to indicate that

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Petitioner’s probation may have extended beyond November 30, 2012.

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See, e.g., “Petition for Writ of Supercedeas,” filed March 12, 2013,

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at 2, 24.

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Although Respondent’s “Motion to Dismiss, etc.,” filed March 14,

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2013, does not appear to raise any issue regarding the “in custody”

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requirement, the Court sua sponte may raise issues concerning subject

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matter jurisdiction at any time.

See Fiedler v. Clark, 714 F.2d 77,

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78 (9th Cir. 1983); Meza v. Riley, 2011 WL 3565243, at *2 (C.D. Cal.

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July 5, 2011), adopted, 2011 WL 3565241 (C.D. Cal. Aug. 12, 2011); see

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also Mansfield, Coldwater & Lake Michigan Railway v. Swan, 111 U.S.

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379, 382 (1884); Fed. R. Civ. P. 12(h)(3).

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Therefore, it is ordered that, within thirty (30) days of the

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date of this Order, Petitioner shall show cause, if there be any, why

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the Petition should not be denied and dismissed without prejudice for

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lack of subject matter jurisdiction.

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such cause by filing a declaration or declarations signed under

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penalty of perjury establishing the factual bases for the Petition’s

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implicit assertion that, on November 30, 2012, Petitioner was “in

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custody” under the conviction challenged in the Petition.

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Petitioner shall attempt to show

Failure

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timely to show such cause may result in the denial and dismissal of

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the Petition.

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DATED: April 18, 2013.

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________________/S/__________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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