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)

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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

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