Chunn

Filing 35

ORDER by Judge William Alsup granting 30 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 9/15/2015)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WALTER CHUNN, III,,

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Petitioner,

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For the Northern District of California

United States District Court

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No. C 14-5102 WHA (PR)
ORDER GRANTING MOTION TO
DISMISS

v.
FIRST APPELLATE DISTRICT
COURT; KAMALA HARRIS,
STATE ATTORNEY GENERAL,

(Dkt. 30)

Respondents.
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INTRODUCTION
This is a habeas case brought pro se by an inmate in Solano County Jail under 28 U.S.C.

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2254. He challenges his conviction and sentence in Alameda County Superior Court in 2003.

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Respondent has filed a motion to dismiss the petition on the grounds that petitioner is not in

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custody on the conviction he challenges. Petitioner filed an opposition (dkt. 32), and

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respondent filed a reply brief. The motion is granted and the case is dismissed.

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STATEMENT
In 2003, petitioner pled guilty in Alameda County Superior Court to lewd and lascivious

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acts upon a child. The trial court sentenced him to a term of three years in state prison. In

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November 2005, he was released on parole. He completed parole on November 19, 2009. In

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the meantime, in 2006, he was convicted in Solano County of felony battery on a peace officer.

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In 2007, that conviction was dismissed after being reduced to a misdemeanor. In 2010, he was

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convicted in Solano County of second-degree burglary and sentenced to a term of sixteen

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months in state prison. On two occasions, he was released on parole but returned to prison after

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violating parole. In 2011, while he was at San Quentin State Prison, he committed battery on a
correctional officer. He was convicted for that offense in Marin County of battery and, in

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March 2013, sentenced to a term of three years. It appears that when he filed the instant

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petition, in November 2014, that three-year sentence had not expired.

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ANALYSIS

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Respondent argues that the instant petition must be dismissed because at the time

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

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

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(1968). This requirement is jurisdictional. Ibid. A petitioner who files a habeas petition after

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he has fully served his sentence and who is not subject to court supervision is not "in custody"

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for the purposes of this court's subject matter jurisdiction and his petition is therefore properly

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For the Northern District of California

petitioner filed the petition, he was not in custody on the state court judgment he challenges.

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United States District Court

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denied. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). Petitioner challenges

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his 2003 conviction from Alameda County. He is no longer serving his three-year sentence, and

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he completed his parole term in November 2009, many years before he filed the instant petition.

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Thus, it does not appear that he was in custody on the conviction he challenges at the time he

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filed the instant petition.

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In March 2015, petitioner indicated that he was on parole (dkt. 24). A petitioner

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released from custody but on parole for the judgment he challenges satisfies the custody

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requirement for federal habeas jurisdiction. See Jones v. Cunningham, 371 U.S. 236, 240

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(1963)). It is difficult to reconcile petitioner’s statement that he is on parole with petitioner’s

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present address at the county jail, which would appear to indicate that he is in custody. In any

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event, however, he concedes in his opposition that his parole term on the 2003 judgment (the

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judgment he challenges here) expired in 2009 (Opp. 1). If he is on parole, that would be a

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parole term one of his later convictions, i.e. the 2010 burglary conviction or the 2013 battery

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conviction, neither of which are challenged here. As petitioner’s parole term for the 2003

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judgment he challenges in the instant petition has expired, any parole status he had when he

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filed the instant petition does not federal habeas custody requirement.

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Petitioner asserts that despite the expiration of his sentence and parole term on the 2003

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conviction, he is in custody for purposes of federal habeas jurisdiction because he must register
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as a sex offender, is subject to housing restrictions, is monitored by G.P.S., and may not possess

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sexually explicit materials. An absence of custody at the time of filing, however, cannot be

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cured by even the most grievous collateral consequences stemming from the conviction under

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attack since the court is without subject matter jurisdiction. Resendiz v. Kovensky, 416 F.3d

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952, 958-59 (9th Cir. 2005). The obligation to register as a sex-offender does not satisfy the

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custody requirement for federal habeas jurisdiction. See Henry v. Jungren, 164 F.3d 1240,

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1241-42 (9th Cir. 1999). Petitioner is no longer subject to housing restrictions based on the

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2003 sex offense because such restrictions only apply to parolees. See People v. Mosley, 60

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Cal. 4th 1044, 1049 (2015). G.P.S. monitoring and restrictions on sexually explicit materials
are collateral consequences that do not establish custody for federal habeas purposes. There is,

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For the Northern District of California

United States District Court

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furthermore, no authority (and petitioner cites none) that he is subject to restrictions on sexually

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explicit materials. The consequences petitioner cites either do not apply to him or do not

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amount to custody on his 2003 conviction.

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There is no subject matter jurisdiction in federal court over the instant petition. This

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ruling does not preclude petitioner from filing a federal habeas petition challenging a different

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state court conviction and sentence.

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CONCLUSION
For the foregoing reasons, respondent’s motion to dismiss (dkt. 30) is GRANTED and the
petition is DISMISSED.
Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to

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rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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which the petition is denied. Petitioner has failed to make a substantial showing that a

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reasonable jurist would find the dismissal of his petition debatable or wrong. Slack v. McDaniel,

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529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted in this case.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: September
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, 2015.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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