The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel and in forma pauperis. Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1994 conviction. (Dkt. No. 34 at 2.) Respondent filed a motion to dismiss this action because petitioner has not been in custody for the 1994 conviction since he was discharged from parole on December 17, 1999. (Dkt. No. 43.) Petitioner filed an opposition, and respondent filed a reply.*fn1 For the reasons set forth below, the motion to dismiss should be granted, and petitioner's pending motions and requests are denied.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated"). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). "Summary dismissal is appropriate only where the allegations are vague [or] conclusory or palpably incredible, . . . or patently frivolous or false." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal quotations and citations omitted).
III. Analysis A. Procedural History
On May 6, 1994, in Sacramento County Superior Court, petitioner pled guilty to one count of robbery, and admitted a prior prison term for a 1993 Yolo County burglary conviction. (Dkt. No. 43 at 5-14.) Petitioner was informed that the 1994 conviction would violate the parole term he was serving at the time of his arrest. (Id. at 8.) In exchange for his guilty plea, petitioner was sentenced to a mid term of three years in state prison based on the 1994 offense, and a one year enhancement based on his prior prison term, for a total of four years in state prison. (Id. at 13-14.) Petitioner was committed to state prison on May 11, 1994. (Id. at 19.)
On May 27, 1996, petitioner was paroled on the 1994 conviction. (Id.) Petitioner sustained additional arrests while on parole, and returned to state prison, but was finally discharged from parole on December 17, 1999. (Id.)
On January 11, 2012, petitioner filed the instant action. (Dkt. No. 1.) After being granted leave to amend, this action proceeds on petitioner's third amended application. (Dkt. No. 34.)
In addition, court records reveal that petitioner subsequently filed an application for a writ of habeas corpus attacking his 2009 Yolo County conviction for unlawful morphine possession, to which he pled no contest. Starr v. State of California, Case No. 2:12-cv-0457 MCE KJN (E.D. Cal.). (Dkt. No. 92 at 1.) Petitioner admitted a prior serious or violent felony conviction for sentencing purposes. (Id.) Petitioner was sentenced to eight years, and was being held in state custody based on the 2009 conviction as of October 19, 2012. (Id.)
B. Lack of Subject Matter Jurisdiction
Habeas relief shall be granted to a person in custody pursuant to the judgment of a state court only on the ground that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254. The "in custody" requirement for a habeas petition pursuant to § 2254(a) is jurisdictional and thus is the first question a habeas court must consider. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). The requirement has two aspects: 1) the petitioner must be in custody at the time the petition is filed, and 2) the custody must be under the conviction or sentence under attack at the time the petition is filed. Id. A habeas petitioner does not remain "in custody" once the sentence imposed for the conviction has "fully expired." Id. at 491.
The record reflects that petitioner was discharged from parole on December 17, 1999; thus, his 1994 conviction expired on December 17, 1999, and petitioner is no longer "in custody" as to the 1994 conviction. The sentence imposed for the 1994 conviction has long since expired. Thus, the court lacks subject matter jurisdiction to consider petitioner's claims ...