Travon Thompson v. People of The State of California

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Jean P. Rosenbluth. IT THEREFORE IS ORDERED that within 21 days of the date of this Order, Petitioner show cause in writing, if he has any, why the Court should not deny the Petition and dismiss this action because he was not in custody at the time it was filed. Petitioner is warned that his failure to timely and satisfactorily respond to this Order may result in his Petition being dismissed for the reasons stated above and for failure to prosecute. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TRAVON THOMPSON,

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Petitioner,

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vs.

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PEOPLE OF STATE OF
CALIFORNIA et al.,

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Respondents.

) Case No. EDCV 15-0322-MMM (JPR)
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) ORDER TO SHOW CAUSE
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On February 24, 2015, Petitioner filed a Petition for Writ

17 of Habeas Corpus by a Person in State Custody under 28 U.S.C.
18 § 2254.

The Petition challenges Petitioner’s September 2013 nolo

19 contendere plea to failing to properly register as a sex
20 offender.

(Pet. at 2.)1

Petitioner did not appeal that

21 conviction (see id.), but he did file habeas petitions in the
22 state courts challenging it (see id. at 4-6).2
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The Court has sequentially numbered the Petition and its
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Petitioner previously filed a habeas petition in this Court,
Thompson v. People of State of California, No. EDCV 14-1708-MMM
(JPR).
After the Court issued an order to show cause why the
petition should not be dismissed for failure to exhaust state
remedies, Petitioner asked to withdraw the petition; the Court
granted his request and administratively closed the case on October
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It appears that the Court lacks jurisdiction over the

2 Petition because Petitioner was not “in custody” for the purposes
3 of § 2254 at the time it was filed.

“The federal habeas statute

4 gives United States district courts jurisdiction to entertain
5 petitions for habeas relief only from persons who are in custody
6 in violation of the Constitution or laws or treaties of the
7 United States.”

Maleng v. Cook, 490 U.S. 488, 490 (1989) (per

8 curiam) (internal quotation marks omitted, emphasis in original);
9 see also § 2254(a) (“[A] district court shall entertain an
10 application for a writ of habeas corpus in behalf of a person in
11 custody pursuant to the judgment of a State court only on the
12 ground that he is in custody in violation of the Constitution or
13 laws or treaties of the United States.”).

The “in custody”

14 requirement is jurisdictional, and it requires that the
15 petitioner be in custody at the time the petition is filed.
16 Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010); see also
17 Cook, 490 U.S. at 490-91 (“We have interpreted the statutory
18 language as requiring that the habeas petitioner be ‘in custody’
19 under the conviction or sentence under attack at the time his
20 petition is filed.”).
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Here, it appears that Petitioner was no longer in jail or on

22 probation or parole on February 24, 2015, when his Petition was
23 filed.

(See Pet. at 1 (listing Petitioner’s residential address

24 in heading of Petition and not place of confinement), 2 (stating
25 that Petitioner received sentence of “5 yrs. time served” in
26 Sept. 2013), 19-20 (superior-court order denying habeas petition
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1 and noting that Petitioner pleaded guilty in September 2013 and
2 was “ordered released forthwith and not placed on parole”)); see
3 Woodall v. Beauchamp, 450 F. App’x 655, 657 (9th Cir. 2011)
4 (finding that petitioner “was not in custody for purposes of the
5 conviction he is challenging as he received credit for time
6 served in excess of the 2–year sentence he received as a result
7 of” that conviction).3

Moreover, the fact that Petitioner

8 continues to be subject to California’s sex-offender-registration
9 requirement is “merely a collateral consequence of conviction
10 that is not itself sufficient to render [him] ‘in custody’ for
11 the purposes of a habeas attack upon it.”

Henry v. Lungren, 164

12 F.3d 1240, 1242 (9th Cir. 1999); see also Williamson v. Gregoire,
13 151 F.3d 1180, 1184 (9th Cir. 1998) (holding that Washington sex14 offender law does not place petitioner “in custody” for purposes
15 of federal habeas corpus).

Because Petitioner is not “in

16 custody” under the state-court decision he challenges, the Court
17 lacks jurisdiction to consider the Petition and it must be
18 dismissed.

See O’Neal v. Sherman, No. EDCV 14-2004-DDP MAN, 2014

19 WL 5810308, at *3 (C.D. Cal. Nov. 6, 2014) (dismissing petition
20 with prejudice when petitioner was not “in custody” under
21 challenged state-court decision).
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Thus, Petitioner also was not in custody when he filed his

28 first federal petition, on September 17, 2014.
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IT THEREFORE IS ORDERED that within 21 days of the date of

2 this Order, Petitioner show cause in writing, if he has any, why
3 the Court should not deny the Petition and dismiss this action
4 because he was not in custody at the time it was filed.
5 Petitioner is warned that his failure to timely and
6 satisfactorily respond to this Order may result in his Petition
7 being dismissed for the reasons stated above and for failure to
8 prosecute.
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11 DATED: February 27, 2015
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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