Cavness v. People of the State of California et al

Filing 7

ORDER REOPENING CASE; ORDER TO SHOW CAUSE BY NOVEMBER 1, 2016 WHY THE PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION. Signed by Judge Richard Seeborg on 9/21/16. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 9/21/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL CAVNESS,

United States District Court
Northern District of California

Petitioner,
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ORDER REOPENING ACTION;

v.
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VICKI HENNESSEY,
Respondent.

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Case No. 16-cv-03300-RS (PR)

ORDER TO SHOW CAUSE BY
NOVEMBER 1, 2016 WHY THE
PETITION SHOULD NOT BE
DISMISSED FOR LACK OF
JURISDICTION

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This federal habeas action was dismissed because petitioner failed to file an

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amended petition by the deadline. He since has filed an amended petition. Accordingly,

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the action is REOPENED. The Clerk shall modify the docket to reflect this. The

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judgment (Docket No. 5) and the order of dismissal (Docket No. 4) are VACATED.

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Petitioner seeks federal habeas relief from his 1999 state conviction for dissuading a

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witness from testifying, a violation of California Penal Code § 136.1(A)(2). For this

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conviction, he received a sentence of 2 years. Because it is more than 17 years after this

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sentence was imposed, it is unlikely that petitioner is still in custody for this offense.

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

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

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U.S. 234, 238 (1968). This requirement is jurisdictional. Id. A petitioner who files a

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habeas petition after he has fully served his sentence and who is not subject to court

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supervision is not “in custody” for the purposes of this Court’s subject matter jurisdiction

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and his petition is therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144,

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1146 (9th Cir. 1990).

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The custody requirement does not mandate that a prisoner be physically confined.
Maleng v. Cook, 490 U.S. 488, 491 (1989). A petitioner who is on parole at the time of

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filing is considered to be in custody, see Jones v. Cunningham, 371 U.S. 236, 241–43

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(1963) and Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on

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probation, see Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). Custody is found

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where the sentence imposed significantly restrains petitioner’s liberty, see, e.g., Dow v.

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Circuit Court, 995 F.2d 922, 923 (9th Cir. 1993) (sentence of mandatory attendance to

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United States District Court
Northern District of California

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fourteen-hour alcohol abuse rehabilitation program sufficient to place petitioner in

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custody), but not where only a fine is imposed, see Dremann v. Francis, 828 F.2d 6, 7 (9th

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Cir. 1987) (sentence which only imposes fine not enough to satisfy custody requirement

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even if petitioner faces imprisonment for failure to pay).

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It appears petitioner is not in custody under the state court judgment for the 1999

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conviction. If this is true, this Court lacks jurisdiction over his habeas petition.

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Accordingly, petitioner is ordered to show cause on or before November 1, 2016 why

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the petition should not be dismissed for lack of jurisdiction.

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No extensions of time will be granted. If petitioner fails to respond to this order to

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show cause, the action will be dismissed pursuant to Federal Rule of Civil Procedure 41(b)

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for failure to prosecute.

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IT IS SO ORDERED.

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Dated: September ___, 2016

_________________________
RICHARD SEEBORG
United States District Judge

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ORDER TO SHOW CAUSE
CASE NO. 16-cv-03300-RS

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