IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 14, 2009
HERBERT M. VAUGHN, PETITIONER,
JOHN W. HAVILAND, RESPONDENT.*FN1
FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2000 sentence for receiving stolen property entered in the Superior Court of Colusa County. Petitioner was sentenced to seven years' imprisonment. Respondent has filed a motion to dismiss. Petitioner opposes the motion.
Respondent argues in part that this action should be dismissed because petitioner's sentence expired before this action was filed. Petitioner was sentenced in the Colusa County case on August 2, 2000. Resp't's Lodged Doc. #1. His sentence expired on March 1, 2006. Resp't's Lodged Doc. #10. Petitioner is still in prison, however, serving a separate consecutive, indeterminate sentence of 25-years-to-life based on a conviction in Sutter County. Id.; Mot. To Dismiss at 3:14-16. This action was not commenced until July 29, 2008.
This court may entertain an application for writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the person is in custody in violation of federal law. 28 U.S.C. § 2254(a). The sentence petitioner challenges has expired and petitioner fails to otherwise allege in this matter that his current incarceration on the consecutive sentence is in violation of federal law.*fn2 Therefore, the court does not have jurisdiction over petitioner's claims and will recommend that this action be dismissed. In light of the foregoing, the court need not address the other arguments presented in respondent's motion to dismiss.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's March 19, 2009 motion to dismiss (#11) be granted; and
2. This action be dismissed.
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 twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).