Elliott v. Vail et al

Filing 3

ORDER TO SHOW CAUSE re: petitioner's terms of community custody by 6/10/2011, signed by Magistrate Judge Karen L Strombom. (MET) cc: Petitioner

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRIAN HOWARD ELLIOTT,
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No. C11-5377 BHS/KLS
Petitioner,
v.
ELDON VAIL and WASHINGTON
DEPARTMETN OF CORRECTIONS,

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ORDER TO SHOW CAUSE

Respondents.
Petitioner seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This case has
been referred to United States Magistrate Judge Karen L. Strombom pursuant to Title 28 U.S.C.

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§ 636 (b) (1) and Local MJR 3 and 4. Petitioner indicates that he was sentenced on May 12,
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2005 for 93 months, with 36 to 48 months of community custody. ECF No. 1. Petitioner’s

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mailing address reflects that he is no longer in the custody of the Washington State Department

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of Corrections.

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Subject matter jurisdiction under 28 U.S.C. § 2254 is limited to those persons “in custody
pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a); Brock v. Weston, 31 F.3d 887,
889 (9th Cir.1994). Once a petitioner’s sentence has fully expired, he is precluded from

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challenging that sentence because he is no longer “in custody” for purposes of federal habeas

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review. Maleng v. Cook, 490 U.S. 488, 492 (1989). The collateral consequences of an expired

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conviction, while sufficient to preclude mootness, are not sufficient to satisfy the “in custody”

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requirement of § 2254. Feldman v. Perrill, 902 F.2d 1445, 1448 (9th Cir.1990)(citing Maleng v.

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Cook, 490 U.S. at 492). See also, Carafas v. LaVallee, 391 U.S. 234 (1968).
ORDER TO SHOW CAUSE - 1

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The “in custody” requirement of § 2254 may be met even if the petitioner is not

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physically confined. Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir.1993),

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citing Jones v. Cunningham, 371 U.S. 236, 239-40 (1963). See Jones, 371 U.S. at 240-43

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(parole tantamount to custody); Hensley v. Municipal Court, 411 U.S. 345, 348-49

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(1973)(release on personal recognizance pending appeal satisfies “in custody” requirement);
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Dow, 995 F.2d at 923 (mandatory attendance at alcohol rehabilitation program satisfies in

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custody requirement); Barry v. Bergen County Probation Department, 128 F.3d 152 (3rd

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Cir.1997)(community service obligation rendered petitioner “in custody” for purposes of habeas

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statute). However, in order to satisfy the custody requirement, the “petitioner must demonstrate

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that he is subject to a significant restraint upon his liberty ‘not shared by the public generally.’”

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Dow, 995 F.2d at 923, quoting Jones, 371 U.S. at 240.

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The court is unable to determine based on the information submitted by Petitioner, the
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nature and terms of Petitioner’s community custody and whether the terms of the community
custody are sufficient to render Petitioner “in custody” for purposes of federal habeas review.

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Accordingly, it is ORDERED:

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(1)

Petitioner shall provide the court with the terms of his community custody
on or before June 10, 2011. If Petitioner fails to do so, the court will
enter a report and recommendation that the petition be dismissed.

(2)

The Court Clerk is directed to send a copy of this Order to Petitioner.

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DATED this 23rd day of May, 2011.

A

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Karen L. Strombom
United States Magistrate Judge

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ORDER TO SHOW CAUSE - 2