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Henry Eugene Harris v. Maurice Junious (Warden

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


April 24, 2012

HENRY EUGENE HARRIS, PETITIONER,
v.
MAURICE JUNIOUS (WARDEN), RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on December 28, 2011. The Petition challenges the legality of Petitioner's 1989 conviction in the Los Angeles County Superior Court. Respondent filed an Answer on February 24, 2012, contending that: (1) the Court lacks subject matter jurisdiction over the Petition; (2) the Petition is untimely; and (3) the Petition is procedurally defaulted. On April 18, 2012, Petitioner filed a Traverse. Also on April 18, 2012, Petitioner filed a "Second Application for Extension of Time to File Supplemental to Traverse on Tolling and Procedural Bar."

BACKGROUND

In 1989, a jury found Petitioner guilty of forcible rape, forcible oral copulation and rape using a foreign object, in Los Angeles County Superior Court case number A577925 (Respondent's Lodgment 1). Petitioner received a prison term of six years (id.). On September 5, 1989, the California Court of Appeal affirmed (Respondent's Lodgment 3).

After being paroled in 1992, Petitioner incurred other convictions and parole violations (Respondent's Lodgment 4, pp. 4-11).*fn1 However, in March of 1998, Petitioner was discharged from parole in Los Angeles County Superior Court case number A577925 (id., p. 8).

On January 5, 2009, Petitioner filed a habeas corpus petition in the Superior Court challenging his 1989 conviction in case number A577925 (Respondent's Lodgment 6). The Superior Court denied the petition (Respondent's Lodgment 7). On February 23, 2009, Petitioner filed a habeas corpus petition in the Court of Appeal challenging his 1989 conviction in Los Angeles Superior Court case number A577925 (Respondent's Lodgment 8). The Court of Appeal denied the petition (Respondent's Lodgment 9).

On May 1, 2009, Petitioner filed a habeas corpus petition in this Court challenging his 1989 conviction. See Harris v. Haws, CV 09-3070-JFW (E).*fn2 The Court dismissed that petition without prejudice on July 8, 2009 for failure to exhaust state remedies.

On October 15, 2009, Petitioner filed another habeas corpus petition in this Court challenging his 1989 conviction. See Harris v. People of the State of California, CV 09-8251-JFW (E). The Court dismissed that petition on December 16, 2009, for failure to exhaust state remedies.

On February 3, 2011, Petitioner filed a third habeas corpus petition in this Court challenging his 1989 conviction. See Harris v. Baca, CV 11-1076-JFW (E). On March 18, 2011, the Court dismissed that petition for failure to exhaust state remedies.

On April 19, 2011, in Los Angeles County Superior Court case number BA364226, Petitioner received a fifteen-year sentence for sale of a controlled substance (Respondent's Lodgment 10). Petitioner presently is serving this sentence.

On May 26, 2011, Petitioner filed a habeas corpus petition in the California Supreme Court, challenging his 1989 conviction (Respondent's Lodgment 11). On October 12, 2011, the California Supreme Court denied the petition (Respondent's Lodgment 12).

DISCUSSION

Subject matter jurisdiction over habeas petitions exists only where, at the time the petition is filed, the petitioner is "in custody" under the conviction challenged in the petition. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); 28 U.S.C. §§ 2241(c), 2254(a); see Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) ("in custody" requirement is jurisdictional). A habeas petitioner does not remain "in custody" under a conviction once the sentence imposed for the conviction has "fully expired." Maleng v. Cook, 490 U.S. at 492.

The sentence for Petitioner's 1989 conviction fully expired more than a decade ago. Indeed, Petitioner concedes that "he is not in custody of the State pursuant to the judgment [sic] and order of the Superior Court of California as set forth in the Answer. . . ." (Traverse, p. 1). Because Petitioner was not "in custody" under his 1989 conviction at the time he filed the present Petition, habeas jurisdiction is unavailable to challenge that conviction.*fn3 Id. The Petition must be denied and dismissed without prejudice for lack of subject matter jurisdiction.*fn4

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition without prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.


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