Austin v. State of California, San Francisco Superior Court et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States District Court
Northern District of California
Case No. 20-cv-00900-CRB
ORDER DISMISSING PETITION
STATE OF CALIFORNIA, SAN
FRANCISCO SUPERIOR COURT, et al.,
Petitioner Gregory Austin seeks a writ of habeas corpus under 28 U.S.C. § 2254,
challenging the validity of a domestic violence protective order which prevents him from engaging
in certain activities, including communicating with or being within 100 yards of his former spouse
and son (“Protected Parties”). 28 U.S.C. § 2254 Rule 4 requires district courts to conduct a
preliminary review of a habeas corpus petition and dismiss it if “it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district
court . . . .” Such dismissal is warranted if it is “patently apparent” that the court does not have
subject matter jurisdiction. Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003). For a district court
to have subject-matter jurisdiction over a habeas petition, the petitioner must be “in custody
pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a).
The Court previously dismissed Austin’s petition with leave to amend because Austin’s
petition did not allege that his physical liberty was sufficiently constrained to render him in
custody, which meant the Court lacked subject matter jurisdiction. See Order Dismissing Petition
(dkt. 22) at 1. The Court also pointed out that Austin’s petition was untimely under 28 U.S.C.
§ 2244(d)(1). Id. at 6. On August 27, 2020, Austin filed a “Notice of Amendments” comprising a
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