The opinion of the court was delivered by: The Honorable Sheri Pym, United States Magistrate Judge
Present: The Honorable Sheri Pym, United States Magistrate Judge
Kimberly I. Carter n/a n/a Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Petitioner: Attorneys Present for Respondent: n/a n/a Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed for Lack of Jurisdiction Due to Lack of Cognizable Claim and Lack of Custody, and for Failure to Exhaust
On January 29, 2013, petitioner Brent McMillan I filed what purports to be a Petition for Writ of Habeas Corpus (the "Petition"). Petitioner seeks the return of his children, who were removed from his custody by the Department of Children and Family Services ("DCFS"). This court having reviewed the Petition, it appears that the Petition
subject to dismissal for multiple reasons. The court will not make a final determination regarding whether the federal Petition should be dismissed, however, without giving petitioner an opportunity to address these issues.
Accordingly, the court hereby issues this Order to Show Cause why the Petition not be dismissed, and specifically orders petitioner to respond to the Order to Show Cause in writing by no later than March 7, 2013. The court further directs petitioner to review the information that follows, which provides additional explanation to why the federal Petition appears to be subject to dismissal and may assist petitioner determining how to respond.
First, it appears that petitioner is not in custody or under any other criminal sentence, as is required to obtain habeas relief. See 28 U.S.C. § 2254(a). The Supreme Court has interpreted § 2254(a) "as requiring that the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. , 490 U.S. 488, 490-91, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989). Although the petitioner need not necessarily be physically confined in order to file a habeas petition,
must still be under a criminal sentence that has not yet expired, such as on parole. Id. 491-92. But petitioner here seems never to have been convicted or under a criminal sentence at all that is related to the matter he challenges. As such, it appears this court jurisdiction to consider his Petition. See id. at 490 ("in custody" requirement is jurisdictional).
Second, and even more fundamentally, the relief petitioner seeks is not cognizable a habeas petition. Section 2254 permits a federal court to entertain a habeas petition a prisoner in state custody "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). "[T]he essence of habeas corpus is an attack by a person in state custody upon the legality of custody, and . . . the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973); Burnett v. Lampert, 432 F. 3d 996, 999 (9th Cir. 2005). Put simply, this court
lacks jurisdiction because petitioner is not claiming that he is in custody in violation the Constitution or other federal law. See Baily v. Hill, 599 F.3d 976, 979-82 (9th Cir. 2010) (§ 2254's jurisdictional requirement includes that the habeas challenge be to the lawfulness of petitioner's custody).
Petitioner indicates that he is also bringing the Petition on behalf of his sons, Brent McMillan II and Brent McMillan III. But although petitioner alleges that his sons were taken from him at gunpoint, there is no indication that they are in custody. And certainly are not in custody pursuant to a criminal judgment by a state court. As such, it appears that the Petition does not state a cognizable claim for relief, and this court lacks jurisdiction over the Petition.
A federal court has the discretion to construe a mislabeled habeas corpus petition a civil rights action and permit the action to proceed, such as when the "petition" seeks relief from the conditions of confinement. See Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971) (per curiam) (holding that where a corpus petition presents § 1983 claims challenging conditions of confinement, the petition should be construed as a civil rights action), superceded by statute on other grounds as recognized in Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 165 L. Ed. 368 (2006). But nothing in the instant Petition indicates that petitioner alleges a civil rights claim. Instead, the Petition appears to be an appeal of a decision by a Children's
Finally, even if the Petition raised a cognizable habeas claim over which this court had jurisdiction, it appears that petitioner has not exhausted his state remedies with to the grounds raised in his Petition. A habeas petitioner must exhaust his or her state court ...