IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 15, 2009
DOCK MCNEELY, PETITIONER,
COUNTY OF SACRAMENTO, SHERIFF JOHN MCGINNESS, ET AL., RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has purportedly filed an action pursuant to 42 U.S.C. § 1983, wherein petitioner, as plaintiff, sought to implicate, inter alia, Sacramento and Placer Counties, Sacramento County Sheriff John McGinness, various Sacramento County sheriff's deputies, a Placer County deputy district attorney, his own counsel, California Justice Department officials and a Sacramento County judge, for alleged misdeeds, including false arrest, malicious prosecution, and abuse of process for holding and prosecuting him on the basis of an underlying conviction that had been invalidated. Complaint, pp. 1-84. However, this court has been compelled to construe the putative complaint as an application pursuant to 28 U.S.C. § 2254 because petitioner seeks his immediate release from custody.
The undersigned directed respondent Sacramento County Sheriff John McGinness to provide a response to petitioner's request for immediate release within twenty days. See Order, filed on September 15, 2009 (dkt # 6). Rather than responding on substantive grounds, County Counsel, on behalf of the sheriff, asks this court to dismiss the sheriff as respondent on the basis that, although petitioner, as of that filing was still being held within the Sacramento County Main Jail, he was pending transfer to the custody of the California Department of Corrections and Rehabilitation following imposition of a state prison term on September 18, 2009. Response, p. 2. According to an abstract of judgment submitted by respondent, petitioner was convicted, on August 20, 2009, of two counts of failure to register (count one in 2007 and count two in 2008) under Cal. Penal Code § 290. Exhibit A to response. Petitioner was thereafter sentenced to a term of seven years, four months on September 18, 2009. Id., at 10.
The court takes judicial notice of McNeely v. McGinness, CIV S-08-0175 LEW JFM P,*fn1 which distinguished between any requirement for petitioner to register as a sex offender, pursuant to Cal. Pen. Code § 290, predicated on a 1995 conviction and any such requirement that would have been based on an invalidated 1998 conviction. In that case, the court found that the 2006 and 2007 offenses for which he was charged for failing to register were based on the valid 1995 conviction (and had yet to be adjudicated). The judgment in Case No. CIV-S-08-0175 was summarily affirmed in an unpublished memorandum from the Ninth Circuit, filed in that case docket on February 10, 2009. Docket # 28.
This court is unable to determine from the respondent Sheriff's response whether the current conviction rests on a 1998 conviction of petitioner's which has been invalidated or an earlier 1995 conviction, which evidently has not (although petitioner claims that conviction to be invalid as well). As petitioner has been transferred to Deuel Vocational Institution (DVI), Warden S.M. Salinas will be substituted in for Sheriff McGinness as respondent in this case.*fn2 Because petitioner has alleged that his present conviction is predicated on an invalidated judgment, the court will require an accelerated response from the Attorney General's Office.
Accordingly, IT IS ORDERED that:
1. The Clerk of the Court is to substitute DVI Warden S.M. Salinas in for Sacramento County Sheriff McGinness as respondent in this action;
2. Respondent is directed to provide a response to petitioner's habeas petition within twenty-one days.
3. The Clerk of the Court shall serve a copy of this order, the consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court together with a copy of the complaint, construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, on Michael Patrick Farrell, Senior Assistant Attorney General.