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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL CAVNESS, United States District Court Northern District of California Petitioner, 12 ORDER REOPENING ACTION; v. 13 14 VICKI HENNESSEY, Respondent. 15 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 16 17 This federal habeas action was dismissed because petitioner failed to file an 18 amended petition by the deadline. He since has filed an amended petition. Accordingly, 19 the action is REOPENED. The Clerk shall modify the docket to reflect this. The 20 judgment (Docket No. 5) and the order of dismissal (Docket No. 4) are VACATED. 21 Petitioner seeks federal habeas relief from his 1999 state conviction for dissuading a 22 witness from testifying, a violation of California Penal Code § 136.1(A)(2). For this 23 conviction, he received a sentence of 2 years. Because it is more than 17 years after this 24 sentence was imposed, it is unlikely that petitioner is still in custody for this offense. 25 The federal writ of habeas corpus is only available to persons “in custody” at the 26 time the petition is filed. See 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 27 U.S. 234, 238 (1968). This requirement is jurisdictional. Id. A petitioner who files a 28 habeas petition after he has fully served his sentence and who is not subject to court 1 supervision is not “in custody” for the purposes of this Court’s subject matter jurisdiction 2 and his petition is therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144, 3 1146 (9th Cir. 1990). 4 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 6 filing is considered to be in custody, see Jones v. Cunningham, 371 U.S. 236, 241–43 7 (1963) and Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on 8 probation, see Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). Custody is found 9 where the sentence imposed significantly restrains petitioner’s liberty, see, e.g., Dow v. 10 Circuit Court, 995 F.2d 922, 923 (9th Cir. 1993) (sentence of mandatory attendance to 11 United States District Court Northern District of California 5 fourteen-hour alcohol abuse rehabilitation program sufficient to place petitioner in 12 custody), but not where only a fine is imposed, see Dremann v. Francis, 828 F.2d 6, 7 (9th 13 Cir. 1987) (sentence which only imposes fine not enough to satisfy custody requirement 14 even if petitioner faces imprisonment for failure to pay). 15 It appears petitioner is not in custody under the state court judgment for the 1999 16 conviction. If this is true, this Court lacks jurisdiction over his habeas petition. 17 Accordingly, petitioner is ordered to show cause on or before November 1, 2016 why 18 the petition should not be dismissed for lack of jurisdiction. 19 No extensions of time will be granted. If petitioner fails to respond to this order to 20 show cause, the action will be dismissed pursuant to Federal Rule of Civil Procedure 41(b) 21 for failure to prosecute. 22 IT IS SO ORDERED. 23 21 Dated: September ___, 2016 _________________________ RICHARD SEEBORG United States District Judge 24 25 26 27 ORDER TO SHOW CAUSE CASE NO. 16-cv-03300-RS 28 2

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