Frazier, Jr. v. Warden
ORDER to SHOW CAUSE why the Petition should not be dismissed for lack of jurisdiction, signed by Magistrate Judge Jennifer L. Thurston on 05/09/2017. Show Cause Response due 21-Day Deadline. (Martin-Gill, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
HENRY LEE FRAZIER, JR.,
No. 1:17-cv-00501-JLT (HC)
ORDER TO SHOW CAUSE WHY
PETITION SHOULD NOT BE DISMISSED
FOR LACK OF JURISDICTION
[TWENTY-ONE DAY DEADLINE]
Petitioner filed a federal habeas petition on April 5, 2017. He filed a First Amended
Petition on April 20, 2017. He challenges a December 30, 2010, conviction in Tuolumne County
Superior Court of felony diversion of construction funds. It appears Petitioner is no longer in
custody. Petitioner will be ordered to show cause why the petition should not be dismissed for
lack of jurisdiction.
Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a
petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of
habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to
dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th
Lack of Jurisdiction
Pursuant to 28 U.S.C. § 2254(a), the Court “shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” (emphasis added.) Thus, in order to obtain habeas relief under 28 U.S.C. § 2254(a), the
petitioner must demonstrate that he is “in custody” at the time the petition is filed. Spencer v.
Kemna, 523 U.S. 1, 7 (1998). If he is not “in custody,” the Court is without jurisdiction to
entertain the petition. Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam); Williamson v.
Gregoire, 151 F.3d 1180, 1182 (9th Cir.1998). In addition to the petitioner being in custody when
the petition is filed, his claim must assert the right to be released. U.S. v. Kramer, 195 F.3d 1129,
1130 (9th Cir. 1999) (as amended). In addition to incarceration, a person who is on parole or
probation at the time he files his federal habeas petition satisfies the custody requirement. Jones
v. Cunningham, 371 U.S. 236, 240-43 (1963).
In this case, Petitioner states he was sentenced to sixty days with thirty actual days served
on March 9, 2011. He was also sentenced to five years’ probation. Because his petition was not
filed until April 5, 2017, it appears he has completed his sentence. In addition, he does not claim
immediate release from custody. Therefore, it appears that he is not in custody and that the Court
is without jurisdiction.
Accordingly, the Court ORDERS Petitioner to SHOW CAUSE within twenty-one days
why the petition should not be dismissed for lack of jurisdiction.
IT IS SO ORDERED.
May 9, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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