(HC) Culling v. Hansen

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/16/2022 RECOMMENDING the petition #1 be dismissed for lack of subject matter jurisdiction. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HACK TOWNSEND CULLING,

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No. 2:22-cv-1349-WBS-EFB (HC)

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

CHRISTOPHER HANSEN,
Respondent.

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Petitioner is a county jail inmate seeking a writ of habeas corpus pursuant to 28 U.S.C. §

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2254. He has paid the filing fee. After filing this action, the court appointed counsel to represent

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petitioner in both this action and a related criminal action. See ECF No. 4 (referencing USA v.

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Culling, 2:20-cr-00029-WBS (E.D. Cal.)).

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The court must dismiss a habeas petition “[i]f it plainly appears from the petition and any

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attached exhibits that the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254

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Cases. For the reason stated below, the petition must be dismissed.

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This court may entertain a challenge to custody imposed pursuant to the judgment of a

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state court only on the ground that such custody violates “the Constitution or laws or treaties of

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the United States.” 28 U.S.C. § 2254. For a federal court to have jurisdiction, petitioner must at

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the time he files his petition be in custody pursuant to the judgment of the state court. Maleng v.

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Cook, 490 U.S. 488, 490-91 (1989); see also Carafas v. LaValle, 391 U.S. 234, 238 (1968).
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In a petition filed on July 29, 2022, petitioner challenges a 2016 judgment of conviction.

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ECF No. 1. On January 2, 2018, petitioner was sentenced to a state prison term of one year and

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four months. Id. at 1. In April of 2022, petitioner challenged the conviction in the California

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Supreme Court by filing a petition for writ of habeas corpus. Id. at 4 (referencing Case No.

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S273914). On July 27, 2022, the California Supreme Court denied the petition on the ground that

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“petitioner is not in the custody of California authorities as a result of the challenged

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conviction.” 1 Likewise, petitioner cannot challenge the 2016 judgment in this court because he is

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no longer in custody as a result of that judgment. See Woodall v. Beauchamp, 450 F. App'x 655,

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657 (9th Cir. 2011) (habeas petitioner must be in custody as a result of the challenged conviction,

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not on unrelated charges). Because petitioner was not in custody pursuant to the judgment of

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conviction when he filed his petition, this action must be dismissed for lack of subject matter

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jurisdiction.

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Thus, it is RECOMMENDED that the petition (ECF No. 1) be DISMISSED for lack of
subject matter jurisdiction.

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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)(1). Within fourteen days

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In

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his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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This information is available on the California Courts website, https://www.courts.ca.
gov/. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803
F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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§ 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a

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final order adverse to the applicant).

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DATED: September 16, 2022.

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