The opinion of the court was delivered by: Theresa A. Goldner United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 31)
ORDER DIRECTING OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed his petition on May 12, 2006, challenging his conviction for three counts of misdemeanor indecent exposure (Cal. Pen. Code 314(1)), and his resulting sentence of 365 days in county jail, to be served concurrent with his ongoing state prison sentence for an earlier felony conviction. (Doc. 1). On July 8, 2008, Respondent filed the instant motion to dismiss the petition, contending that, at the time the petition was filed, Petitioner had already completed his 365-day sentence on the convictions challenged in the petition, and therefore he could not satisfy the "in custody" requirement for petitions filed under § 2254. (Doc. 31). On July 14, 2008, Petitioner filed his reply to the motion to dismiss, contending that because he has been incarcerated since 1991 on the earlier felony conviction and remains incarcerated, that he satisfies the "in custody" requirement. (Doc. 34).
A. Factual Context Of Petitioner's Case
On March 12, 2004, after being convicted in the Kings County Superior Court of three counts of indecent exposure, Petitioner, an inmate of the California Department of Corrections and Rehabilitation ("CDCR") at the time the offenses were committed, was sentenced to a term of 365 days in county jail, to be served concurrent with his ongoing felony prison term which Petitioner had been serving since 1991. (Doc. 32, Lodged Document ("LD") 1, p. 10; Doc. 34).*fn1
The minute order of the sentencing court does not reflect that Petitioner was awarded any pre-sentence credits. (LD 1, p. 10). Thus, although Respondent has not provided any documentation from the CDCR to establish precisely when Petitioner completed the 365 day sentence, under the most charitable circumstances, Petitioner's sentence would have commenced the day after sentencing, March 13, 2004, and would have expired 365 days later, on March 12, 2005. The instant petition was filed over a year after that date, on May 12, 2006.
B. Petitioner Does Not Satisfy "In Custody" Requirement For Federal Habeas Relief
Pursuant to 28 U.S.C. § 2254(a), "[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." (Emphasis supplied). This "in custody" requirement has been interpreted to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is "under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-491, 109 S.Ct. 1923 (1989)(per curiam); Resendiz v. Kovensky, 416 F.3d 952, 955 (9th Cir. 2005).
It is well-established that "once the sentence imposed for a conviction has completely expired, the collateral consequences of the conviction are not themselves sufficient to render an individual 'in custody' for the purposes of a habeas attack upon it." Maleng, 490 U.S. at 492; Feldman v. Perrill, 902 F.2d 1445, 1448 (9th Cir. 1990). The Supreme Court has not taken a literal view of the "in custody" requirement, observing that "besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus." Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373 (1963) (holding that persons released from incarceration on parole are "in custody" under 28 U.S.C. § 2241); see also, Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1989). Thus, if the petition were filed while petitioner was "in custody," his subsequent release would not necessarily deprive a federal court of subject matter jurisdiction nor would it render the petition moot. Carafas v. LaValle, 391 U.S. 234, 238, 88 S.Ct. 1556 (1968).*fn2
However, where a petitioner completes his sentence before the habeas petition is filed, the issue becomes one of whether the conviction and sentence has merely collateral consequences--themselves insufficient to establish the "in custody" requirement--or whether the conviction and sentence impose a "restraint on liberty." Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998). Thus, for example, a sentence of fourteen hours of attendance at an alcohol rehabilitation program renders someone "in custody." Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir. 1993). Similarly, a convict released on his own recognizance pending execution of his sentence is "in custody" because he is obligated to appear at times and places ordered by the court. Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571 (1973). Also, a parolee is "in custody" because, "[w]hile petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom." Jones, 371 U.S. at 243. See Barry v. Bergen County Probation Department, 128 F.3d 152, 161 (3d Cir. 1997)(sentence of 500 hours community service placed petitioner "in custody"). However, fines or restitution are simply "collateral consequences" and are insufficient to render someone "in custody." Williamson, 151 F.3d at 1183.
Here, there can be no question that Petitioner had completed his 365-day sentence well before the instant petition was filed and thus Petitioner cannot meet the "in custody" requirement. This is so despite Petitioner's contention that he has been in custody since 1991. Indeed, it seems incontrovertible that Petitioner has been in the CDCR's physical custody during that period of time; however, for all but 365 days of that period he was "in custody" of the CDCR on an unrelated conviction that is not the subject of the instant habeas petition. The only relevant time period for purposes of satisfying § 2254 is the time period Petitioner was "in custody" on the offense which the petition is challenging.
In the Court's view, the only constraint on Petitioner's liberty that could conceivably satisfy the "in custody" requirement is the fact that someone, such as Petitioner, convicted in California of indecent exposure is required to register as a sex offender. However, in Williamson v. Gregoire, 151 F.3d at 1183-1184, the Ninth Circuit, after carefully analyzing the case law regarding the "in custody" requirement, held that a similar registration requirement in a ...