Martha v. The People of the Sate of California et al

Filing 9

ORDER OF DISMISSAL (Illston, Susan) (Filed on 8/23/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

GEORGE NIMER MARTHA,
Petitioner,

8
9
10
11

Case No. 18-cv-00785-SI
ORDER OF DISMISSAL

v.
THE PEOPLE OF THE SATE OF
CALIFORNIA, et al.,

United States District Court
Northern District of California

Respondent.
12
13

The court issued an order to show cause on March 26, 2018, directing petitioner to address

14

three apparent procedural problems with his petition for writ of habeas corpus challenging his

15

1994 conviction upon a guilty plea. Petitioner thereafter sent to the court several letters which, for

16

the most part, provided no information responsive to the order to show cause. See Docket Nos. 6,

17

7, 8; see also Docket No. 6 in Martha v. People, No. 18-780 SI. Having provided petitioner an

18

opportunity to address the issues, the court now reviews the procedural problems in this case.

19

First, the court ordered petitioner to explain how he satisfied the custody requirement

20

under 28 U.S.C. § 2254, which requires both that there be a restraint on the petitioner’s liberty and

21

that there be “a nexus between the petitioner’s claim and the unlawful nature of the custody.”

22

Docket No. 5 at 2 (quoting Bailey v. Hill, 599 F.3d 976, 979-80 (9th Cir. 2010). Petitioner did not

23

provide any information in his three letters showing that there was any nexus between his claim

24

regarding the guilty plea and the allegedly unlawful nature of his present custody. He does not

25

show that he satisfies the custody requirement in § 2254 for his petition challenging his 1994

26

guilty plea.

27

Second, the court ordered petitioner to explain why his “petition challenging a 24-year old

28

conviction should not be dismissed as barred by the [one-year] habeas statute of limitations.

1

Docket No. 5 at 3. Petitioner stated in a letter that he had a “212-C waiver since 1998 with (INS)

2

– ICE, to which allows [him] to appeal at any giv[en] time,” although that waiver was revoked last

3

year. Docket No. 6 in Martha v. People, No. 18-cv-780 SI. Even if petitioner had a § 212(c)

4

waiver,1 such a waiver would concern his removability from the country and would not provide an

5

open-ended extension of the deadline to file an appeal or a habeas petition challenging a

6

conviction that might lead him to be removable. Any § 212(c) waiver would not excuse the two-

7

decade delay in filing a petition for writ of habeas corpus to challenge the 1994 conviction.

8

Petitioner has failed to show that his petition for writ of habeas corpus is not barred by the statute

9

of limitations in 28 U.S.C. § 2244(d).
Third, the court directed petitioner to state whether and when he presented his claim to the

11
United States District Court
Northern District of California

10

California Supreme Court. Petitioner has failed to address this issue, and has failed to show that

12

he exhausted state court remedies for any claim.

13

In short, it appears that petitioner is not in custody on the conviction he is challenging, that

14

the petition is barred by the statute of limitations, and that petitioner has not exhausted state court

15

remedies for his claim. Because the lack of custody is a jurisdictional problem, that will be the

16

basis for the dismissal of this action.

17

Under 28 U.S.C. § 2254, a federal court may entertain a petition for a writ of habeas

18

corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the

19

ground that he is in custody in violation of the Constitution or laws or treaties of the United

20

States.” A petitioner must be in custody on the conviction or sentence under attack at the time the

21

petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). “A petitioner who files a habeas

22

petition after he has fully served his sentence and who is not subject to court supervision is not ‘in

23
24
25
26
27
28

1

Section 212 of the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1182,
“excluded from the United States several classes of aliens, including those convicted of offenses
involving moral turpitude or the illicit traffic in narcotics.” INS v. St. Cyr, 533 U.S. 289, 294
(2001). Section 212(c) “grant[ed] the Attorney General broad discretion to admit excludable
aliens,” and was interpreted to allow certain aliens to apply for discretionary waiver of
deportation. See St. Cyr, 533 U.S. at 294-95. Although § 212(c) was repealed in 1996, relief
under § 212(c) “remains available for aliens . . . whose convictions were obtained through plea
agreements and who, notwithstanding those convictions, would have been eligible for § 212(c)
relief at the time of their plea under the law then in effect.” St. Cyr, 533 U.S. at 326.
2

1

custody’ for the purposes of this court's subject matter jurisdiction” and his petition therefore

2

properly is denied. De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990).

3

This action is DISMISSED for lack of jurisdiction because, at the time he filed his petition

4

for writ of habeas corpus, petitioner was not in custody pursuant to the conviction he attacks in his

5

petition. The clerk shall close the file.

6

IT IS SO ORDERED.

7
8
9

Dated: August 23, 2018
______________________________________
SUSAN ILLSTON
United States District Judge

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3