Young v. Pfeiffer

Filing 8

ORDER TO SHOW CAUSE BY DECEMBER 1, 2016 WHY THE PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION. Signed by Judge Richard Seeborg on 10/11/16. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 10/11/2016)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 HOWARD YOUNG, United States District Court Northern District of California Petitioner, Case No. 16-cv-04329-RS (PR) 12 v. 13 14 C. PFEIFFER, Respondent. 15 ORDER TO SHOW CAUSE BY DECEMBER 1, 2016 WHY THE PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION 16 17 Petitioner seeks federal habeas relief from his 1992 California state convictions for 18 kidnapping and second degree burglary. He received a sentence of 3 years for the 19 kidnapping conviction and a concurrent sentence of 16 months for the burglary conviction. 20 Because it is more than 24 years after these sentences were imposed, it is unlikely that 21 petitioner is still in custody for these offenses. If he is not, the Court lacks jurisdiction 22 over this action. 23 The federal writ of habeas corpus is only available to persons “in custody” at the 24 time the petition is filed. See 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 25 U.S. 234, 238 (1968). This requirement is jurisdictional. Id. A petitioner who files a 26 habeas petition after he has fully served his sentence and who is not subject to court 27 supervision is not “in custody” for the purposes of this Court’s subject matter jurisdiction 28 and his petition is therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144, 1 2 1146 (9th Cir. 1990). The custody requirement does not mandate that a prisoner be physically confined. 3 Maleng v. Cook, 490 U.S. 488, 491 (1989). A petitioner who is on parole at the time of 4 filing is considered to be in custody, see Jones v. Cunningham, 371 U.S. 236, 241–43 5 (1963) and Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on 6 probation, see Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). Custody is found 7 where the sentence imposed significantly restrains petitioner’s liberty, see, e.g., Dow v. 8 Circuit Court, 995 F.2d 922, 923 (9th Cir. 1993) (sentence of mandatory attendance to 9 fourteen-hour alcohol abuse rehabilitation program sufficient to place petitioner in custody), but not where only a fine is imposed, see Dremann v. Francis, 828 F.2d 6, 7 (9th 11 United States District Court Northern District of California 10 Cir. 1987) (sentence which only imposes fine not enough to satisfy custody requirement 12 even if petitioner faces imprisonment for failure to pay). 13 It appears petitioner is not in custody under the state court judgment for the 1992 14 convictions. If he is not in such custody, this Court lacks jurisdiction over his habeas 15 petition. Accordingly, petitioner is ordered to show cause on or before December 1, 16 2016 why the petition should not be dismissed for lack of jurisdiction. 17 No extensions of time will be granted. If petitioner fails to respond to this order to 18 show cause, the action will be dismissed pursuant to Federal Rule of Civil Procedure 41(b) 19 for failure to prosecute. The Court notes that the filing fee has been paid. 20 21 IT IS SO ORDERED. 11 Dated: October ___, 2016 _________________________ RICHARD SEEBORG United States District Judge 22 23 24 25 26 27 ORDER TO SHOW CAUSE CASE NO. 16-cv-04329-RS 28 2

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