Jayne v. Lockett, et al

Filing 5

ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/22/14 ORDERING that Petitioners motion to proceed in forma pauperis 2 is GRANTED; Petitioners motion for appointment of counsel 4 is denied as moot; and th e Clerk of Court shall assign a district judge to this action. It is RECOMMENDED that the petition be dismissed without prejudice for lack of jurisdiction, and this case closed. Randomly assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL A. JAYNE,

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No. 2:14-cv-1887 CKD P

Petitioner,
v.

ORDER AND

CHARLES L. LOCKETT, et al.,

FINDINGS AND RECOMMENDATIONS

Respondents.

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Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma

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pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to

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afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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Petitioner is incarcerated at the Federal Correctional Complex in Coleman, Florida. (ECF

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No. 1 (“Ptn.”) at 1.) He challenges his July 2011 conviction in the Shasta County Superior Court

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for battery on a custodial officer, resisting an executive officer, and related offenses. (Id.)

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Petitioner indicates that after he pled no contest to these charges, he was sentenced to a prison

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term of five years, four months. (Id.) Petitioner did not directly appeal this conviction, but filed

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petitions for writs of habeas corpus challenging the conviction in the state courts. (Id. at 2.) His

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state habeas claims, which he reasserts in the instant federal petition, include claims that the trial

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court erred in not appointing petitioner counsel, and actual innocence. (Id. at 3.)
Petitioner asserts that the 2011 conviction “has aggravated [his] federal sentencing in

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which his points in the USSG [federal Sentencing Guidelines] were increased and he was given

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an increased sentence in federal prison.” (Id. at 5.)
Pursuant to 28 U.S.C. § 2254(a), “[t]he Supreme Court, a Justice thereof, a circuit judge,

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or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” The “in custody”

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requirement is jurisdiction for a federal habeas court. Baily v. Hill, 599 F.3d 976, 978 (9th Cir.

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2010). In Baily, the Ninth Circuit observed that the “in custody” requirement of federal habeas

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law has two aspects. First, the petitioner must be “under the conviction or sentence under attack

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at the time his petition is filed.” Baily, 599 F.3d at 978–979, quoting Resendiz v. Kovensky, 416

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F.3d 952, 956 (9th Cir. 2005). Second, section 2254(a) “explicitly requires a nexus between the

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petitioner’s claim and the unlawful nature of the custody.” Baily, 599 F.3d at 980.
In its March 2013 denial of petitioner’s application for habeas corpus, the Shasta County

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Superior Court reasoned as follows:

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Upon reviewing the Petition, this Court contacted the Austin, Texas
Division of the U.S. Attorney’s Office to determine if the
Petitioner’s sentence was in fact enhanced based on a Shasta
County conviction. The Petitioner’s federal criminal matter arose
out of a violation of federal firearms laws. Although the
Petitioner’s sentence was enhanceable, pursuant to a plea bargain in
the U.S. District Court for the Western District of Texas, case #A12-CR-401, on March 13, 2013 the petitioner was sentenced to 10
years with no enhancements. Furthermore, the Petitioner waived all
appellate rights in conjunction with that negotiated disposition.

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The Petitioner’s Shasta County cases are final. To the extent that
the Petitioner’s federal sentence in the U.S. District court may have
subjected him to an enhanced penalty due to his Shasta County
convictions, it was not actually enhanced. Therefore, the issue is
moot and the restraint requirement of Penal Code section 14731 has

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“Every person unlawfully imprisoned or restrained of his liberty . . . may prosecute a writ of
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not been met.

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(Ptn. at 43; see id. at 45-52 (petitioner’s March 13, 2013 plea agreement in the U.S. District

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Court, Western District of Texas).)

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On the record before the court, there is no evidence that petitioner is currently “in

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custody” pursuant to his Shasta County conviction. Thus the court lacks jurisdiction to consider

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the instant petition and will recommend that it be dismissed without prejudice.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is granted;

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2. Petitioner’s motion for appointment of counsel (ECF No. 4) is denied as moot; and

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3. The Clerk of Court shall assign a district judge to this action.

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IT IS HEREBY RECOMMENDED THAT the petition be dismissed without prejudice for

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lack of jurisdiction, and this case closed.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” In his objections petitioner may address whether a

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certificate of appealability should issue in the event he files an appeal of the judgment in this

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case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or

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deny a certificate of appealability when it enters a final order adverse to the applicant). Petitioner

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is advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: August 22, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / jayn1887.custody

habeas corpus, to inquire into the cause of such imprisonment or restraint.” Cal. Penal Code
§1473(a).
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