Matthew Gjersvold v. Jeffrey Beard

Filing 16

MEMORANDUM OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS HABEAS PETITION AND DISMISSING ACTION WITH PREJUDICE by Judge Michael W. Fitzgerald re: MOTION to Dismiss Petition for Writ of Habeas Corpus 12 . (twdb)

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DATED: _ _ _

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I HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED BY
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FIRST ClASS MAIL POSTAGE PREPAID, TO ALUl91:1NSEL '\'c\!.\l\l't'V"
'QR PhRfiESl AT THEIR RESPECTIVE MOST RECENT ADDRESS OF
RECORD IN THIS ACTION ON THIS .DATE.

DEPUTY ClERK

FILED • SOUTHERN DIVISION
CLERK, U.S. DISTRICT COURT

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JUL - 2 2013

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CENT~ DISTRICT OF CALIFORNIA
BY
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DEPUTY

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MATTHEW GJERSVOLD,
Petitioner,

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Case No. CV 13-0344-MWF (JPR)
MEMORANDUM OPINION AND ORDER
GRANTING RESPONDENT'S MOTION TO
DISMISS HABEAS PETITION AND
DISMISSING ACTION WITH PREJUDICE

vs.
JEFFREY BEARD,

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Respondent.

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PROCEEDINGS

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On January 17, 2013, Petitioner filed a Petition for Writ of

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Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C.

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§

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Order Requiring Response to Petition, noting that if Respondent

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filed a motion to dismiss the Petition, Petitioner would have 20

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days from service of the motion to file any opposition to it.

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April 17, 2013, after two extensions of time, Respondent filed a

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Motion to Dismiss the Petition and a supporting memorandum,

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arguing that (1) the Court lacked jurisdiction to decide the

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Petition because Petitioner was not in custody at the time it was

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filed and (2) the Petition was time barred under the one-year

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statute of limitations for filing federal habeas petitions.

2254.

On January 22, 2013, the Magistrate Judge issued an

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On

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On May 28, 2013, the Magistrate Judge issued a minute order

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dismiss had been due on May 7, 2013, and that under Local Rule 7-

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consent to the granting . . . of the motion."

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Judge afforded Petitioner "one more opportunity" to file his
opposition, but she expressly warned him that failure to do so

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within 14 days could result in the Court's granting Respondent's

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motion on that basis.

noting that Petitioner's opposition to Respondent's motion to

12, failure to file opposition to any motion "may be deemed
The Magistrate

On June 3, 2013, the Magistrate Judge's

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minute order was returned to the Court by the U.S. Postal Service

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with a notation that there was "no authorization to receive mail

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for this address."

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opposition to Respondent's motion or notified the Court of his

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current address. 1

To date, Petitioner has not filed any

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BACKGROUND

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On August 23, 2010, Petitioner pleaded no contest to two

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counts of possessing an assault weapon (Cal. Penal Code

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§

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weapon, specifically, a "billy," or police baton (Cal. Penal Code

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§

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Doc. 1 at 1, 3; Lodged Doc. 7.)

12280(b)

12020 (a)

(2010)) and one count of possession of a deadly

(2010)) .

(Pet. at 2; Mem. Supp. Pet. at 1; Lodged
On December 2, 2010, Petitioner

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The Court may dismiss the Petition on these grounds
alone.
See Local R. 7-12 ("The failure to file any required
document, or the failure to file it within the deadline, may be
deemed consent to the granting or denial of the motion.") ; Local R.
41-6 (court may dismiss action for want of prosecution when "mail
directed by the Clerk to a prose plaintiff's address of record is
returned undelivered by the Postal Service" and "plaintiff fails to
notify, in writing, the Court and opposing parties of [his] current
address" within 15 days) . The Court has nevertheless decided the
motion on the merits.
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1 was sentenced to three years in state prison and granted 532 days

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of presentence credit.

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Doc. 1 at 1; Lodged Doc. 7.)

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(Pet. at 2; Mem. Supp. Pet. at 6; Lodged

On appeal, Petitioner's appellate counsel filed an opening

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brief but did not raise any claims in it.

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2.)

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four claims of ineffective assistance of trial counsel .

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id.)

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on parole.

(See Lodged Doc. 1 at

On August 23, 2011, Petitioner filed prose a brief raising
(See

On September 11, 2011, Petitioner was released from prison
(Lodged Doc. 6 at 4.)

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On November 14, 2011, the court of appeal found "no

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evidence" that Petitioner had filed a certificate of probable

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cause, as required by California Penal Code section 1237.5 and

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Rule 8.304(b) (1) of the California Rules of Court. 2

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1 at 4-5.)

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in effect, challenge the validity of his plea . "

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court noted, however, that it had "examined the entire record"

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and was "satisfied that [Petitioner's] attorney has fully

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complied with his responsibilities and that no arguable issues

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exist."

(Lodged Doc.

The court therefore "[did] not reach his claims that,

(Id. at 6.)

(Id. at 5.)

The

On December 5, 2011, Petitioner was placed

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Penal Code section 1237.5 provides that "[n] o appeal
shall be taken by the defendant from a judgment of conviction upon
a plea of guilty or nolo contendere" except when (1) the defendant
has filed with the trial court a written statement executed under
penalty of perjury that "show[s]
reasonable constitutional,
jurisdictional, or other grounds going to the legality of the
proceedings" and (2) "[t]he trial court has executed and filed a
certificate of probable cause for such appeal with the clerk of the
court."
Rule 8.304(b) (1) states that in order to appeal from a
superior court judgment after entering a plea, "the defendant must
file in that superior court with the notice of appeal .
. the
statement required by Penal Code section 1237.5 for issuance of a
certificate of probable cause."
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1 on nonrevocable parole.

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(Lodged Doc. 6 at 4.)

On April 11, 2012, Petitioner filed a habeas petition in the

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state superior court.

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Petitioner was discharged from his nonrevocable parole.

5 Doc. 6 at 4.)
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(Lodged Doc. 2, Attach.)

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On May 1, 2012,
(Lodged

On May 7, 2012, the superior court denied the

petition because it "contain[ed] only vague, conclusory

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(Lodged Doc. 2, Attach.)

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On July 2, 2012, Petitioner filed a habeas petition in the

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state court of appeal, which summarily denied it on July 18,

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2012.

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filed a habeas petition in the state supreme court, which

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summarily denied it on October 31, 2012.

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Doc. 4.)

(Lodged Docs. 2, 3.)

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On September 27, 2012, Petitioner

(Pet. at 4-5; Lodged

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PETITIONER'S CLAIM

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Trial counsel rendered constitutionally ineffective

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assistance by "abandoning a motion to suppress without conducting

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reasonable investigation."

(Pet. at 5.)

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Respondent did not separately lodge Petitioner's April
11, 2012 superior court petition or that court's decision, but
copies of those documents were attached to the state court of
appeal petition Petitioner subsequently filed.
(See Lodged Doc.
2.)
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Respondent's Notice of Lodging of Documents states that
lodged document five is "Minutes, dated October 31, 2012,
reflecting order denying petition for writ of habeas corpus in
California Supreme Court case number S205633," but that document
was not included in the documents lodged with the Court.
The
Court's review of the California Appellate Courts' Case Information
website, however, confirms that the supreme court denied the
petition on October 31, 2012.
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DISCUSSION

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Pursuant to 28 U.S.C. § 2254(a), a federal court "shall

a person in custody pursuant to the judgment of a State court

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2254(a) 's custody requirement "has been interpreted to mean that

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federal courts lack jurisdiction over habeas corpus petitions

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unless the petitioner is under the conviction or sentence under

entertain an application for a writ of habeas corpus in behalf of

only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."

Section

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attack at the time his petition is filed."

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F.3d 976, 978-79 (9th Cir. 2010)

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marks omitted); see also Maleng v. Cook, 490 U.S. 488, 490-91,

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109 S. Ct. 1923, 1925, 104 L. Ed. 2d 540 (1989)

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(interpreting§ 2254(a)

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be 'in custody' under the conviction or sentence under attack at

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the time his petition is filed").

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requirement is jurisdictional, "it is the first question [the

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court] must consider."

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citation and quotation marks omitted).

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Bailey v. Hill, 599

(citation and internal quotation

(per curiam)

"as requiring that the habeas petitioner

Because the custody

Bailey, 599 F.3d at 978 (internal

"The boundary that limits the 'in custody' requirement is

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the line between a 'restraint on liberty' and a 'collateral

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consequence of a conviction.'"

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internal quotation marks, and alteration omitted).

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petitioner on parole is considered to be "in custody."

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Cunningham, 371 U.S. 236, 242-43, 83 S. Ct. 373, 376-77, 9 L. Ed.

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2d 285 (1963).

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"completely expired," however, the collateral consequences of

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that conviction are not sufficient to render an individual "in

Id. at 979 (citation, some
Thus, a
Jones v.

Once the sentence imposed for a conviction has

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1 custody" for purposes of a habeas petition.

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Maleng, 490 U.S. at

492.
Petitioner was discharged from prison on September 11, 2011,
and completed his parole term on May 1, 2012.
4.)

(Lodged Doc. 6 at

Petitioner filed his federal Petition more than eight months

later, on January 17, 2013.

Thus, Petitioner was not "in

custody" when he filed his federal Petition.

See Tatarinov v .

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Superior Ct., 388 F. App'x 624, 625 (9th Cir. 2010)

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"a defendant is no longer 'in custody' once he is discharged from

(noting that

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probation or parole"); see also Maleng, 490 U.S. at 492 ("While

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we have very liberally construed the 'in custody' requirement for

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purposes of federal habeas, we have never extended it to the

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situation where a habeas petitioner suffers no present restraint

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from a conviction.").

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if his petition challenges a more recent conviction on the ground

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that its sentence was enhanced by virtue of the allegedly invalid

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earlier conviction, see Lackawanna Cnty. Dist. Attorney v. Coss,

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532 U.S. 394, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001), here,

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Petitioner has not alleged that he was subsequently convicted of

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any offense.

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filed his federal Petition.

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address).)

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Petition. 5

Although a petitioner may be "in custody"

Indeed, he was not incarcerated at the time he
(See Pet. at 1 (showing nonprison

The Court therefore lacks jurisdiction to review the

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Because the Court lacks jurisdiction to consider the
Petition, it does not address Respondent's argument that the
Petition is untimely under 28 U.S.C. § 2244(d).
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ORDER

IT THEREFORE IS ORDERED that Judgment be entered granting

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Respondent's motion to dismiss and dismissing the Petition with

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prejudice.

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DATED: July 1, 2013
MICHAEL W. FITZGERALD
U.S. DISTRICT JUDGE

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