Austin v. State of California, San Francisco Superior Court et al

Filing 34

ORDER dismissing 31 Amended Petition with prejudice. Signed by Judge Charles R. Breyer on 1/6/2021. (crblc2, COURT STAFF) (Filed on 1/6/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
8

GREGORY AUSTIN,
Plaintiff,

9
10

United States District Court
Northern District of California

11
12

Case No. 20-cv-00900-CRB
ORDER DISMISSING PETITION
WITH PREJUDICE

v.
STATE OF CALIFORNIA, SAN
FRANCISCO SUPERIOR COURT, et al.,
Defendants.

13
14

Petitioner Gregory Austin seeks a writ of habeas corpus under 28 U.S.C. § 2254,

15

challenging the validity of a domestic violence protective order which prevents him from engaging

16

in certain activities, including communicating with or being within 100 yards of his former spouse

17

and son (“Protected Parties”). 28 U.S.C. § 2254 Rule 4 requires district courts to conduct a

18

preliminary review of a habeas corpus petition and dismiss it if “it plainly appears from the

19

petition and any attached exhibits that the petitioner is not entitled to relief in the district

20

court . . . .” Such dismissal is warranted if it is “patently apparent” that the court does not have

21

subject matter jurisdiction. Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003). For a district court

22

to have subject-matter jurisdiction over a habeas petition, the petitioner must be “in custody

23

pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a).

24

The Court previously dismissed Austin’s petition with leave to amend because Austin’s

25

petition did not allege that his physical liberty was sufficiently constrained to render him in

26

custody, which meant the Court lacked subject matter jurisdiction. See Order Dismissing Petition

27

(dkt. 22) at 1. The Court also pointed out that Austin’s petition was untimely under 28 U.S.C.

28

§ 2244(d)(1). Id. at 6. On August 27, 2020, Austin filed a “Notice of Amendments” comprising a