The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is proceeding without counsel. Pending before the court is respondents' motion to dismiss petitioner's application for writ of habeas corpus. Respondents contend that this court lacks jurisdiction because petitioner completed his sentence seven months prior to the filing of the instant action. As set forth more fully below, the court finds that the motion to dismiss should be granted.
II. Procedural Background
Petitioner was convicted of misdemeanor criminal contempt on July 30, 2008.
(Dkt. No. 12-1 at 3.) On August 8, 2008, the remaining 57 days of the 60 day jail sentence was stayed until December 9, 2008, to allow petitioner to complete 120 hours of community service. (Dkt. No. 12-1 at 5-7.) On November 12, 2010, petitioner demonstrated his completion of community service hours, and the trial court "permanently stayed" petitioner's county jail sentence. (Dkt. No. 12-1 at 16.) Petitioner's sentence expired on November 12, 2010. (Id.)
Petitioner appealed the misdemeanor conviction, and on November 10, 2009, the Solano County Superior Court, Appellate Division, affirmed the conviction. (Dkt. No. 12-1 at 9-11.) On February 24, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, and on April 14, 2010, the petition was denied without comment. (Dkt. No. 12-1 at 14.) Petitioner filed the instant petition on June 7, 2011.
Under federal law, "[t]he writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States . . . ." 28 U.S.C. § 2241(c)(3). A 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." 28 U.S.C. § 2254(a). The statutory "in custody" requirement is jurisdictional. Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam); Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998). It is well established that, in order to satisfy the jurisdictional "in custody" requirement, a petitioner must not merely be in custody but must be in custody under the conviction or sentence under attack at the time he files his federal habeas petition. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
"Custody" is not limited to actual physical incarceration. Jones v. Cunningham, 371 U.S. 236, 243 (1963) (holding that a parolee was "in custody" within the meaning of the habeas corpus statute). Custody includes other forms of significant restraint, such as parole, probation, or release on bail or personal recognizance. Id., see also Hensley v. Municipal Ct., 411 U.S. 345, 348 (1973) (release on bail or on personal recognizance demonstrates "in custody" requirement); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988) (serving probationary term at time of filing demonstrates "custody" for jurisdictional purposes).
However, "once 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." Maleng, 490 U.S. at 492.
Here, petitioner's sentence expired on November 12, 2010, and petitioner was not placed on probation, parole, or supervised release. Because petitioner's sentence completely expired on November 12, 2010, petitioner was not "in custody" on June 7, 2011, the date the instant petition was filed. Thus, this court may not entertain the petition because it lacks jurisdiction. Maleng, 490 U.S. at 492.
Petitioner first argues that he was required to exhaust his state court remedies prior to filing in federal court, and that he has no control over the speed at which his petitions are heard by the state courts. However, petitioner exhausted his state court remedies on April 14, 2010, the date the California Supreme Court denied the petition for writ of habeas corpus, yet petitioner did not file his federal petition until June 7, 2011. Because petitioner did not present his proof of community service hours to the Solano County Superior Court until November 12, 2010, petitioner could have been deemed "in custody" had he filed his federal petition between April 15, 2010 and November 11, 2010. Or petitioner could have delayed the submission of his community service documentation to the Solano County ...