Cavness v. People of the State of California et al
Filing
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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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