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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 JOHN R. GHOLAR, SR., ) ) Petitioner, ) ) v. ) ) R. BURTON, Warden, ) ) Respondent. ) ______________________________) NO. CV 21-9008-ODW(E) ORDER OF DISMISSAL 16 17 18 On November 15, 2021, Petitioner filed a “Petition for a Writ of 19 Habeas Corpus By a Person in State Custody” (“Petition”), to which is 20 attached, inter alia, a “Motion to Vacate Judgment, etc.” 21 seeks to challenge his 1987 sodomy conviction in Los Angeles County 22 Superior Court (case number A091875), for which Petitioner received a 23 prison sentence of fifteen years (see Petition at 2). 24 alleges that the trial judge was biased and committed misconduct 25 (Petition at 5). 26 innocent of the crime of sodomy (Petition at 5-6). 27 /// 28 /// Petitioner Petitioner Petitioner also alleges that he was actually 1 Petitioner previously has filed a number of federal habeas 2 actions attempting to challenge this same 1987 conviction. See Gholar 3 v. Eldridge, 2019 WL 1766166, at *1-5 (C.D. Cal. Apr. 22, 2019) 4 (“Order of Dismissal” reciting history of Petitioner’s previous 5 cases). 6 to entertain the present challenge to the 1987 conviction. For the reasons explained below, the Court lacks jurisdiction 7 8 9 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 10 pursuant to the judgment of a State court.” 11 Subject matter jurisdiction over such a petition exists only where, at 12 the time of filing, the petitioner is “in custody” under the 13 conviction challenged in the petition. 14 490-91 (1989); see Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) 15 (“in custody” requirement is jurisdictional). 16 does not remain “in custody” under a conviction once the sentence 17 imposed for the conviction has “fully expired.” 18 U.S. at 492. 19 Eldridge, supra, this Court, the United States District Court for the 20 Eastern District of California and the United States Court of Appeals 21 for the Ninth Circuit all previously have ruled that Petitioner cannot 22 challenge his 1987 conviction in a federal habeas proceeding because 23 Petitioner no longer is in custody on that conviction. 24 this Court (again) lacks jurisdiction to entertain Petitioner’s 25 challenge to that conviction. 26 /// 27 /// 28 /// 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. 2 Therefore, 1 ORDER 2 3 For the foregoing reasons, the Petition and Petitioner’s “Motion 4 to Vacate Judgment, etc.” are denied and dismissed without prejudice. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 DATED: November 19, 2021. 9 10 11 __________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 12 13 14 15 PRESENTED this 18th day of 16 November, 2021, by: 17 18 19 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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