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Sherman v. Yolo County Chief Probation Officer


September 15, 2008


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Petitioner, who is proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's petition for a writ of habeas corpus (Doc. 1), filed on October 1, 2007. Respondents filed a response (Doc. 17) on June 16, 2008. Petitioner has not filed a traverse.

The petition appears to challenge a 2004 order from the Yolo County Superior Court sentencing petitioner to three years in custody on a probation violation. Petitioner states that he filed habeas petitions in the Yolo County Superior Court, California Court of Appeal, and California Supreme Court, all of which denied relief. Petitioner seems to assert that the 2004 order is unconstitutional.

In their response, respondents state:

As set forth in the accompanying declaration of Respondent Don Meyer, Petitioner JOSEPH ARCH SHERMAN is not on probation with the County of Yolo and has not been so since July 11, 2006. The Probation Department of Yolo County has no authority, custody or control over Petitioner and does not seek to enforce any court order for probation with respect to Petitioner, including the two orders referenced by Petitioner in Yolo County Superior Court Case Nos. 04-4128 and 04-5635. Petitioner was sentenced directly to confinement without probation for different misdemeanor offences on May 11, 2006 and June 1, 2006, resulting in the termination of probation on July 11, 2006. No probation in Yolo County has been ordered since that time. While on information and belief, the Respondent believes Petitioner has pending appeals in various criminal matters that are still pending, none of these matters involve the Probation Department in Yolo County. So far as the County of Yolo Probation Department is concerned, there is no current probation case open involving Petitioner, and there is no currently valid court probation order that applies to petitioner.

The court finds that this response does not seem to address the issue raised by petitioner. Specifically, respondents state that they have no record of any "current probation case open" involving petitioner. However, petitioner appears to be challenging the revocation of probation in 2004, not any current probation.

In any event, the Yolo County Chief Probation Officer is not the correct respondent to the extent petitioner is challenging confinement pursuant to a probation revocation order. The correct respondent would be the prison warden. Moreover, given that petitioner has provided the court with a post office box in David, California, as his address of record, it appears that he is no longer in custody and was not in custody when he filed the instant petition in October 2007. Because, with few exceptions that do not apply in this case, federal habeas corpus relief is only available to persons in state custody, see 28 U.S.C. § 2254(a), the petition must be denied.

Based on the foregoing, the undersigned recommends that petitioner's petition for a writ of habeas corpus (Doc. 1) be denied and that the Clerk of the Court be directed to enter judgment and close this file.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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