Sherman v. Yolo County Sheriff

Filing 16

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/22/2012 ORDERING the clerk to assign a district court judge to this case; and RECOMMENDING that respondent's 11 motion to dismiss be granted; and this case be closed. Referred to Judge Garland E. Burrell, Jr.; Objections due within 21 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH A. SHERMAN,

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Petitioner,

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No. CIV-S-11-1537 CKD P

vs.
YOLO COUNTY SHERIFF,

ORDER AND

Respondent.

FINDINGS AND RECOMMENDATIONS
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Petitioner is proceeding pro se with a petition for writ of habeas corpus under 28

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U.S.C. § 2254. He challenges two Yolo County convictions entered in 2009 for refusing to obey

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a California Highway Patrol officer. Petitioner was sentenced to 180 days in the Yolo County

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Jail. It is not disputed that petitioner was discharged from his sentence well before this action

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was filed. That being the case, respondent moves to dismiss.

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Under the express language of 28 U.S.C. § 2254, the court can only entertain a

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petition for writ of habeas corpus if the petitioner is “in custody pursuant to the judgment of a

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state court . . .” Petitioner is not incarcerated or on probation as a result of his 2009 Yolo County

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convictions, nor does it appear that there are any express restraints on his liberty because of those

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convictions. Therefore, respondent is correct that this action should be dismissed. Petitioner

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opposes respondent’s motion to dismiss, but the arguments raised in his opposition (e.g. the “in
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custody” requirement is met because petitioner’s habeas petition was not filed beyond the

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applicable limitations period) do not alter the conclusion that respondent is legally correct.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a
district court judge to this case.

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IT IS HEREBY RECOMMENDED that:

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1. Respondent’s October 6, 2011 motion to dismiss be granted; and

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2. This case be closed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner

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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

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court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant). Any reply to the objections shall be served and filed within fourteen days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: March 22, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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sher1537.157

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