John R. Gholar Sr. v. R. Burton

Filing 4

ORDER OF DISMISSAL by Judge Otis D. Wright, II, re Petition for Writ of Habeas Corpus (2254). #1 The Petition and Petitioners Motion to Vacate Judgment, etc. are denied and dismissed without prejudice. (See document for details) (vmun)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOHN R. GHOLAR, SR.,

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Petitioner,
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v.
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R. BURTON, Warden,
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Respondent.
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______________________________)

NO. CV 21-9008-ODW(E)

ORDER OF DISMISSAL

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On November 15, 2021, Petitioner filed a “Petition for a Writ of

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Habeas Corpus By a Person in State Custody” (“Petition”), to which is

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attached, inter alia, a “Motion to Vacate Judgment, etc.”

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seeks to challenge his 1987 sodomy conviction in Los Angeles County

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Superior Court (case number A091875), for which Petitioner received a

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prison sentence of fifteen years (see Petition at 2).

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alleges that the trial judge was biased and committed misconduct

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(Petition at 5).

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innocent of the crime of sodomy (Petition at 5-6).

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Petitioner

Petitioner

Petitioner also alleges that he was actually

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Petitioner previously has filed a number of federal habeas

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actions attempting to challenge this same 1987 conviction.

See Gholar

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v. Eldridge, 2019 WL 1766166, at *1-5 (C.D. Cal. Apr. 22, 2019)

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(“Order of Dismissal” reciting history of Petitioner’s previous

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cases).

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to entertain the present challenge to the 1987 conviction.

For the reasons explained below, the Court lacks jurisdiction

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Under section 2254 of Title 28 U.S.C., a district court may
entertain a habeas petition filed “in behalf of a person in custody

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pursuant to the judgment of a State court.”

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Subject matter jurisdiction over such a petition exists only where, at

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the time of filing, the petitioner is “in custody” under the

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conviction challenged in the petition.

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490-91 (1989); see Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010)

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(“in custody” requirement is jurisdictional).

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does not remain “in custody” under a conviction once the sentence

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imposed for the conviction has “fully expired.”

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U.S. at 492.

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Eldridge, supra, this Court, the United States District Court for the

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Eastern District of California and the United States Court of Appeals

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for the Ninth Circuit all previously have ruled that Petitioner cannot

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challenge his 1987 conviction in a federal habeas proceeding because

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Petitioner no longer is in custody on that conviction.

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this Court (again) lacks jurisdiction to entertain Petitioner’s

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challenge to that conviction.

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28 U.S.C. § 2254(a).

Maleng v. Cook, 490 U.S. 488,

A habeas petitioner

Maleng v. Cook, 490

As described in the “Order re Dismissal” in Gholar v.

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Therefore,

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ORDER

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For the foregoing reasons, the Petition and Petitioner’s “Motion

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to Vacate Judgment, etc.” are denied and dismissed without prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: November 19, 2021.

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__________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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PRESENTED this 18th day of

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November, 2021, by:

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/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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