Rodriguez v. California Department of Corrections et al

Filing 5

ORDER of Dismissal. Signed by Judge Edward M. Chen on 1/2/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 1/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In Re

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MANUEL RODRIGUEZ,

No. C-12-4435 EMC (pr)
ORDER OF DISMISSAL

Petitioner.
___________________________________/

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For the Northern District of California

United States District Court

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Manuel Rodriguez commenced this action by filing a petition for a “writ of habeas corpus[,]

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or in the alternative by writ of mandate, or a writ of coram nobis directing the Superior Court for the

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County of Monterey to vacate and set aside the conviction” of petitioner. Docket # 1, p. 1. The

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conviction under attack was a 1999 misdemeanor assault conviction from Monterey County Superior

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Court or Monterey County Municipal Court. This Court issued an order explaining that neither a

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writ of mandate nor a writ of error coram nobis was available to Petitioner and that his remedy, if

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any, was a writ of habeas corpus. This Court ordered Petitioner to show cause why this action

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should not be dismissed for failure to satisfy the custody requirement, for untimeliness, and for

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failure to exhaust state court remedies. This Court also ordered Petitioner to name a proper

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respondent.

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Petitioner filed a response in which he attempted to show that he met the custody

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requirement. He stated that, due to the conviction, he cannot carry a firearm and that his inability to

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carry a firearm disqualifies him from obtaining a job in his preferred field of law enforcement.

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The federal writ of habeas corpus is available only to persons “in custody” at the time the

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petition is filed. 28 U.S.C. §§ 2241(c), 2254(a); see Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

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The custody requirement is jurisdictional. See Carafas, 391 U.S. at 238. Petitioner’s inability to

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lawfully carry a firearm and his inability to obtain a particular kind of job are collateral

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consequences that do not satisfy the custody requirement for habeas corpus jurisdiction.

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See Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987) (revocation of medical license based upon

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petitioner’s conviction not satisfy custody requirement for petitioner who filed following

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unconditional release from probationary period); see also Ginsberg v. Abrams, 702 F.2d 48, 49 (2d.

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Cir. 1983) (where sentence of unconditional discharge entailed neither imprisonment, fine, nor

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probation supervision, judge’s removal from bench, loss of right to practice law and disqualification

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from licensure as agent insufficient to constitute custody); Harvey v. South Dakota, 526 F.2d 840,

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841 (8th Cir. 1975) (inability to pursue certain professions, to possess firearms, and status of

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recidivist if another crime committed do not amount to custody). Regardless of the existence of
serious collateral consequences stemming from petitioner’s conviction, the absence of custody at the

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For the Northern District of California

United States District Court

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time of the filing of the petition means that the Court lacks subject matter jurisdiction to entertain the

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petition for writ of habeas corpus. See Resendiz v. Kovensky, 416 F.3d 952, 958-59 (9th Cir. 2005)

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The action must be dismissed.

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The action is dismissed for the separate and additional reason that the Court lacks personal

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jurisdiction due to Petitioner’s failure to name a proper respondent. See Stanley v. California

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Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

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In light of the dismissal of the action for jurisdictional reasons, the Court does not reach the
non-jurisdictional problems of untimeliness and non-exhaustion of state court remedies.
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in

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which “jurists of reason would find it debatable whether the petition states a valid claim of the denial

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of a constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED.

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Dated: January 2, 2013
_________________________
EDWARD M. CHEN
United States District Judge

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