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Richardson v. California Dep't of Corrections

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 24, 2009

JOHN RICHARDSON, PETITIONER,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

28 U.S.C. § 1915(a).

Petitioner alleges that he should not have been required to register as a sex offender pursuant to Cal. Penal Code § 290. It is unclear from the petition whether petitioner is currently in custody as a result of failing to comply with the requirements of § 290. If petitioner is not in custody as a result of his failing to comply with § 290, this court does not have jurisdiction to consider the petition. Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999)(California's sexual offender registration statute does not render a petitioner in custody because it does not place a significant restriction on physical liberty). In other words, if petitioner is in custody for matters unrelated to the requirement that he register pursuant to § 290, the court may not consider his claims in a habeas petition.

Accordingly, the petition is dismissed with leave to amend. In the amended petition, petitioner must clearly state whether he is presently being prosecuted for his failure to register as a sex offender or is otherwise in jail/prison as a result of having been convicted of failing to register as a sex offender.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner is granted leave to proceed in forma pauperis;

2. The petition is dismissed with thirty days to file an amended petition.

20090324

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