Kelley v. United States Attorney General et al

Filing 4

ORDER Granting 2 Motion for Leave to Proceed in forma pauperis; and Sua Sponte Dismissing Petition for. Signed by Judge Gonzalo P. Curiel on 1/12/18. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARTINEZ MARTY KELLEY,

Case No. 17cv2591 GPC (JMA)

Petitioner,

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v.

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ORDER

UNITED STATES ATTORNEY
GENERAL,

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(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

Respondent.

(2) SUA SPONTE DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS FOR LACK OF
JURISDICTION

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Petitioner, proceeding pro se, has filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. Petitioner has also filed a request to proceed in forma
pauperis which reflects that he has no funds in his trust account at the facility in which he
is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court
GRANTS Petitioner’s application to proceed in forma pauperis. The Clerk of the Court
shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee.
However, the Court will sua sponte DISMISS this petition for lack of jurisdiction.
Federal courts may grant habeas relief under 28 U.S.C. § 2241 only if the petitioner is in
“custody” in violation of the Constitution or laws or treaties of the United States. See 28

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17cv2591 GPC (JMA)

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U.S.C. § 2241; Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502,

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510 (1982); Stewart v. Downey, No. 13-2901 CW, 2013 WL 5423795, at *1 (N.D. Cal.

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Sept. 27, 2013), aff'd (Mar. 12, 2014). The term “custody” refers to individuals who, as a

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result of a criminal conviction, are subject to “substantial restraints not shared by the

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public generally.” The requirement that an individual be in custody to be afforded habeas

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relief is jurisdictional. Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998).

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Petitioner in this case is not in custody. See Petition at 1 (listing personal residential

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address). Plaintiff’s “identification number” (2018565600003701) appears to be the case

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number for an asset forfeiture case, not an identification number indicating that he is in

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custody.1 The fact that Plaintiff’s car may be in the government’s possession does not

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mean that Plaintiff himself is in custody. Accordingly, because Petitioner is not in

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“custody,” the Court will dismiss his petition for writ of habeas corpus for a lack of

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jurisdiction.

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IT IS SO ORDERED.

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Dated: January 12, 2018

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To the extent that Petitioner seeks to challenge the seizure of his property, the Court directs Petitioner
to forfeiture.gov.
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17cv2591 GPC (JMA)