Villegas v. Kelley et al

Filing 10

ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; DENYING MOTION TO AMEND. Signed by Judge JEFFREY S. WHITE on 12/21/11. (jjoS, COURT STAFF) (Filed on 12/21/2011)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 EDWARD EUGENE VILLEGAS, Petitioner, 12 13 14 15 vs. TOMAS V. KELLEY, Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) No. C 11-2708 JSW (PR) ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; DENYING MOTION TO AMEND (Docket Nos. 2 & 9) Petitioner, proceeding pro se, has filed a habeas corpus petition challenging his 18 state court conviction and his continued obligation to register as a sex offender. He was 19 convicted in Santa Clara County Superior Court in 1981, and he has completed his 20 sentence for that conviction. He continues to be required to register as a sex offender 21 under California Penal Code § 290. 22 The federal writ of habeas corpus is only available to persons "in custody" at the 23 time the petition is filed. See 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 24 U.S. 234, 238 (1968). This requirement is jurisdictional. Id. A petitioner who files a 25 habeas petition after he has fully served his sentence and who is not subject to court 26 supervision is not "in custody" for the purposes of this court's subject matter jurisdiction 27 and his petition is therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144, 28 1146 (9th Cir. 1990). Petitioner has completed his sentence, and his “merely being 1 subject to a sex offender registry requirement does not satisfy the ‘in custody’ 2 requirement.” Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). As Petitioner is not 3 “in custody” for purposes of federal habeas jurisdiction, the instant petition is 4 DISMISSED. In light of this conclusion, moreover, Petitioner’s motion to amend 5 (docket number 9) is DENIED. 6 Furthermore, Petitioner has failed to make a substantial showing that his claims 7 amounted to a denial of his constitutional rights and that a reasonable jurist would find 8 this Court's denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 9 484 (2000). Consequently, no certificate of appealability is warranted in this case. The application to proceed in forma pauperis (docket number 2) is GRANTED. 11 For the Northern District of California United States District Court 10 The Clerk shall enter judgment and close the file. 12 IT IS SO ORDERED. 13 14 15 DATED: December 21, 2011 JEFFREY S. WHITE United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 EDWARD E. VILLEGAS, Case Number: CV11-02708 JSW 6 Plaintiff, CERTIFICATE OF SERVICE 7 v. 8 KELLEY, ET AL. et al, 9 Defendant. / 11 For the Northern District of California United States District Court 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 12 District Court, Northern District of California. 13 That on December 21, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter 14 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 15 16 17 Edward Eugene Villegas 1207 Lancelot Land 18 San Jose, CA 95127 19 20 Dated: December 21, 2011 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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