Luparello v. Parole & Community Services Division, State of California

Filing 3

ORDER OF DISMISSAL. Signed by Judge Ronald M. Whyte on 7/10/12. (jg, COURT STAFF) (Filed on 7/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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THOMAS G. LUPARELLO,
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Petitioner,
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vs.
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PAROLE & COMMUNITY SERVICES
DIVISION,

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Respondent.
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No. C 12-2589 RMW (PR)
ORDER OF DISMISSAL

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254, challenging parole restrictions which were imposed upon him as
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conditions of parole. Petitioner has paid the filing fee. For the reasons stated below, the court
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DISMISSES the petition.
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BACKGROUND
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According to his petition, petitioner was convicted in 1981 of conspiracy to commit and
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assault, and murder. Petitioner was sentenced to a term of 25 years to life. Between 1986 and
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2008, petitioner appeared before the Board of Parole Hearings (“Board) for a determination of
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whether he was suitable for release on parole. On October 28, 2008, the Board found petitioner
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suitable for parole, and released him from prison. On November 6, 2011, petitioner was
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discharged from parole supervision. (Pet., Ex. F.)
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Order of Dismissal
G:\PRO-SE\SJ.Rmw\HC.12\Luparello589dis.wpd

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DISCUSSION
A.

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Standard of Review
This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a state court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975).

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A district court shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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B.

Petitioner’s Claims
In the instant petition, petitioner seeks to have the court declare that the parole

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restrictions imposed upon him violated his due process because they hindered his ability to

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remain employed, and imposed unreasonable restrictions on travel. The federal writ of habeas

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corpus is available only to persons in custody at the time the petition is filed. See 28 U.S.C. §§

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2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). The “in custody” requirement

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is jurisdictional. Id. A petitioner who files a habeas petition after he has fully served his

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sentence and who is not subject to court supervision is not in custody for purposes of federal

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subject matter jurisdiction, and such petition is therefore properly dismissed. See De Long v.

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Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). Here, petitioner is no longer in custody as he

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was discharged from parole in 2011. Consequently, petitioner cannot challenge the validity of

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his conditions of parole by way of federal habeas corpus. Accordingly, petitioner’s petition is

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hereby DISMISSED.
CONCLUSION

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The petition for writ of habeas corpus is DISMISSED. The clerk shall close the file.

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IT IS SO ORDERED.

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DATED: _______________
RONALD M. WHYTE
United States District Judge

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Order of Dismissal
G:\PRO-SE\SJ.Rmw\HC.12\Luparello589dis.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

THOMAS G LUPARELLO,

Case Number: CV12-02589 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
PAROLE AND COMMUNITY SERVICES
DIVISION et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 11, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

Thomas G Luparello
751 Holly Avenue
Rohnert Park, CA 94928
Dated: July 11, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk