FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 1, 2010, the undersigned ordered respondent to file and serve a response to the petition. On July 13, 2010, respondent filed the pending motion to dismiss, arguing that the court lacks jurisdiction in this matter. Petitioner has not filed an opposition to the motion.*fn1
In 1998 in the Sacramento County Superior Court, petitioner entered a plea of no contest to the charge of stalking. Pursuant to that plea, on April 2, 1998, the trial court sentenced him to three years of probation. Probation was revoked once but ultimately reinstated. Petitioner did not appeal his judgment of conviction and sentence. (Resp't's Lodged Docs. 1 & 7.)
Petitioner subsequently filed three petitions seeking habeas corpus relief in state court. Under the mailbox rule, on March 9, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal which was denied on March 19, 2009. On May 21, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on October 14, 2009. Finally, on June 25, 2009, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court which was denied on August 7, 2009. (Resp't's Lodged Docs. 2-7.)
On January 13, 2010, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court.
RESPONDENT'S MOTION TO DISMISS
Respondent moves to dismiss the pending habeas petition, arguing that this court lacks jurisdiction over this matter because petitioner is no longer in custody with respect to the judgment of conviction he seeks to challenge. Specifically, respondent argues that the "in custody" requirement is satisfied only if petitioner was in custody on the judgment he challenges at the time of filing his federal petition. On April 2, 1998, the Sacramento County Superior Court sentenced petitioner to a three year term of probation. Petitioner's probation ended in 2001. Petitioner did not commence this action until January 14, 2010. Accordingly, respondent concludes that petitioner's "in custody" status ended log before he filed his pending federal habeas petition. (Resp't's Mot. to Dismiss at 2-3.)
Under 28 U.S.C. § 2254, a federal 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.
The "in custody" requirement of § 2254 is jurisdictional. See Maleng v. Cook, 490 U.S. 488, 490 & 494 (1989); Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998). Respondent correctly observes that a habeas corpus petitioner must be "in custody" pursuant to the conviction or sentence under attack at the time he files his petition. See Maleng, 490 U.S. at 490-91. "[O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual 'in custody' for the purposes of a habeas attack upon it." Id. at 492.
In this case, the record demonstrates that, on April 2, 1998, petitioner pled no contest to stalking pursuant to a plea bargain. The Sacramento County Superior Court sentenced him to a three year term of probation with a thirty-day jail commitment as one of the conditions of probation. Although petitioner's probation was revoked once, it was reinstated by the court and ultimately terminated in 2001. (Resp't's Lodged Docs. 1 & 7.) Petitioner filed his federal habeas petition on January 13, 2010, years after his "in custody" status ended with respect to his 1998 conviction. Accordingly, this court lacks subject-matter jurisdiction over this habeas action, and the pending petition should be dismissed.*fn2
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's July 13, 2010 motion to dismiss (Doc. No. ...