Frazier, Jr. v. Warden

Filing 9

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)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HENRY LEE FRAZIER, JR., 12 Petitioner, 13 14 v. WARDEN, 15 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] Respondent. 16 Petitioner filed a federal habeas petition on April 5, 2017. He filed a First Amended 17 18 Petition on April 20, 2017. He challenges a December 30, 2010, conviction in Tuolumne County 19 Superior Court of felony diversion of construction funds. It appears Petitioner is no longer in 20 custody. Petitioner will be ordered to show cause why the petition should not be dismissed for 21 lack of jurisdiction. DISCUSSION 22 23 24 A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 25 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 26 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 27 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 28 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 1 1 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 2 Cir.2001). 3 B. 4 Lack of Jurisdiction Pursuant to 28 U.S.C. § 2254(a), the Court “shall entertain an application for a writ of 5 habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on 6 the ground that he is in custody in violation of the Constitution or laws or treaties of the United 7 States.” (emphasis added.) Thus, in order to obtain habeas relief under 28 U.S.C. § 2254(a), the 8 petitioner must demonstrate that he is “in custody” at the time the petition is filed. Spencer v. 9 Kemna, 523 U.S. 1, 7 (1998). If he is not “in custody,” the Court is without jurisdiction to 10 entertain the petition. Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam); Williamson v. 11 Gregoire, 151 F.3d 1180, 1182 (9th Cir.1998). In addition to the petitioner being in custody when 12 the petition is filed, his claim must assert the right to be released. U.S. v. Kramer, 195 F.3d 1129, 13 1130 (9th Cir. 1999) (as amended). In addition to incarceration, a person who is on parole or 14 probation at the time he files his federal habeas petition satisfies the custody requirement. Jones 15 v. Cunningham, 371 U.S. 236, 240-43 (1963). 16 In this case, Petitioner states he was sentenced to sixty days with thirty actual days served 17 on March 9, 2011. He was also sentenced to five years’ probation. Because his petition was not 18 filed until April 5, 2017, it appears he has completed his sentence. In addition, he does not claim 19 immediate release from custody. Therefore, it appears that he is not in custody and that the Court 20 is without jurisdiction. 21 22 23 ORDER Accordingly, the Court ORDERS Petitioner to SHOW CAUSE within twenty-one days why the petition should not be dismissed for lack of jurisdiction. 24 25 26 IT IS SO ORDERED. Dated: May 9, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 27 28 2

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