The opinion of the court was delivered by: John C. Coughenour United States District Judge
This matter comes before the Court on Petitioner Mark Stephen Baldacchino's 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. No. 1), Respondents' answer (Dkt. No. 11), and Petitioner's reply (Dkt. No. 13). Having carefully considered these papers, the underlying state court record, and the balance of pertinent materials in the case file, the Court has determined that a hearing is not necessary. The Court finds and rules as follows.
The California Court of Appeal succinctly summarized the lengthy facts underlying Petitioner's convictions as follows. Petitioner "was arrested when he arrived at a crime scene and refused to comply with the orders of sheriff's deputies. He subsequently kicked out a window of a patrol car." People v. Baldacchino, No. C046420, 2005 WL 3249943, at *1 (Cal. Ct. App. Dec. 2, 2005). On December 23, 2004, a California state jury convicted Petitioner of two misdemeanors, vandalism and obstructing a peace officer, violations of California Penal Code sections 594 and 148, respectively. (Trial Tr. vol. 3, 645:8--25, Dec. 23, 2003 (Dkt. No. 14); Clerk's Tr. at 278--79 (Dkt. No. 14).) On January 26, 2004, the trial court judge ordered that the imposition of sentence be suspended and placed Petitioner on summary probation for a period of three years under the general terms and conditions of probation with the additional special condition that Petitioner be committed to the El Dorado County Jail for a ninety day period.*fn1 (Trial Tr. vol. 3, 654--56, Jan. 26, 2004 (Dkt. No. 14); Clerk's Tr. at 292--94 (Dkt. No. 14).) Soon thereafter, the court agreed to allow Petitioner to postpone serving his jail time until August 2, 2004, in order to give his attorney an opportunity to appeal his convictions. (Clerk's Tr. 298 (Dkt. No. 14).)
On December 2, 2005, the state court of appeals affirmed Petitioner's convictions, holding, inter alia, that, contrary to Petitioner's arguments, both statutes under which Petitioner was convicted were not unconstitutionally vague and overbroad. Baldacchino, 2005 WL 3249943, at *6--7. Petitioner petitioned for review with the California Supreme Court (Cal. Sup. Ct. Pet. (Dkt. No. 14)), but the petition was denied on March 15, 2006 (Cal. Sup. Ct. Register (Dkt. No. 14)).*fn2
On May 10, 2007, Petitioner, through his attorney, filed the instant petition for writ of habeas corpus, requesting that the Court set aside his convictions for violations of California Penal Code sections 148(a)(1) and 594(a), which he argues are facially unconstitutional. (Pet. 30--31 (Dkt. No. 1).)
Before the Court can address the merits of Petitioner's habeas petition, it must resolve two jurisdictional issues, discussed in turn below.
A. The "In Custody" Requirement
"Typically, federal courts have jurisdiction to consider a habeas petition only if the petitioner is 'in custody' under the conviction or sentence under attack at the time his petition is filed." Fowler v. Sacramento County Sheriff's Dep't, 421 F.3d 1027, 1033 n.5 (9th Cir. 2005) (quoting Maleng v. Cook, 490 U.S. 488, 490--91 (1989) (internal quotation and citation omitted)). "A probationary term is sufficient custody to confer [this] jurisdiction." Id. (citing United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988)).
It is not clear to the Court whether Petitioner was still on summary probation by the time he filed the instant habeas petition. His term of three years of summary probation was imposed on January 26, 2004, along with the additional special condition that Petitioner be committed to the El Dorado County Jail for a ninety day period. (Trial Tr. vol. 3, 654--56, Jan. 26, 2004 (Dkt. No. 14); Clerk's Tr. at 292--94 (Dkt. No. 14).) According to the record, the state court agreed to allow Petitioner to postpone serving his jail time until August 2, 2004, in order to give his attorney an opportunity to file an appeal of his convictions. (Clerk's Tr. 298 (Dkt. No. 14).) By the Court's estimation, Petitioner's term of summary probation should have ended in January 2007.*fn3 Petitioner did not file the instant petition until May 10, 2007.
However, Respondent asserts that it "appears" that Petitioner's term of probation "expired in June of 2007 without further requirement of actual service of any period of physical confinement[.]" (Answer 2 n.1 (Dkt. No. 11).) If Petitioner was in fact on probation until June 2007, then it would appear that he was "in custody" for purposes of habeas jurisdiction in May 2007. Respondent fails to support its assertion that Petitioner's probation ended in June 2007 with citation to the record or otherwise.
The point at which Petitioner's term of probation ended is further obfuscated by Petitioner's Reply, which implies that up through at least December 19, 2007, the date the Reply was filed:
Petitioner and the undersigned counsel have been making periodic appearances in the El Dorado County Superior Court to keep said court apprised of all developments with respect to Petitioner's appeals and writs of habeas corpus. Once Petitioner's appeals/writs of habeas corpus have been exhausted, and if they are unsuccessful, Petitioner has been ordered to serve, and will serve, 90 days in physical custody as a result of the convictions that the instant petition for a writ of habeas corpus challenges. (Reply 2 (Dkt. No. 13).) He also asserts that his "sentence has been stayed pending appeal of the convictions," (id.), though the ninety-day jail term was apparently not imposed as a "sentence" but rather as a special condition of his probation. Petitioner also fails to cite any evidence in the record to show that he was still on probation and subject to the special condition of confinement in May 2007. The Court cannot adjudicate the merits of Petitioner's habeas claims unless subject matter jurisdiction ...