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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HOWARD YOUNG,

United States District Court
Northern District of California

Petitioner,

Case No. 16-cv-04329-RS (PR)

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v.
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C. PFEIFFER,
Respondent.

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

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Petitioner seeks federal habeas relief from his 1992 California state convictions for

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kidnapping and second degree burglary. He received a sentence of 3 years for the

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kidnapping conviction and a concurrent sentence of 16 months for the burglary conviction.

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Because it is more than 24 years after these sentences were imposed, it is unlikely that

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petitioner is still in custody for these offenses. If he is not, the Court lacks jurisdiction

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over this action.

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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).
The custody requirement does not mandate that a prisoner be physically confined.

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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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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

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United States District Court
Northern District of California

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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 1992

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convictions. If he is not in such custody, this Court lacks jurisdiction over his habeas

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petition. Accordingly, petitioner is ordered to show cause on or before December 1,

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2016 why 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. The Court notes that the filing fee has been paid.

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IT IS SO ORDERED.
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Dated: October ___, 2016

_________________________
RICHARD SEEBORG
United States District Judge

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ORDER TO SHOW CAUSE
CASE NO. 16-cv-04329-RS

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