Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Gjersvold v. Beard

United States District Court, Ninth Circuit

July 1, 2013

JEFFREY BEARD, Respondent.




On January 17, 2013, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. On January 22, 2013, the Magistrate Judge issued an Order Requiring Response to Petition, noting that if Respondent filed a motion to dismiss the Petition, Petitioner would have 20 days from service of the motion to file any opposition to it. On April 17, 2013, after two extensions of time, Respondent filed a Motion to Dismiss the Petition and a supporting memorandum, arguing that (1) the Court lacked jurisdiction to decide the Petition because Petitioner was not in custody at the time it was filed and (2) the Petition was time barred under the one-year statute of limitations for filing federal habeas petitions.

On May 28, 2013, the Magistrate Judge issued a minute order noting that Petitioner's opposition to Respondent's motion to dismiss had been due on May 7, 2013, and that under Local Rule 7-12, failure to file opposition to any motion "may be deemed consent to the granting... of the motion." The Magistrate Judge afforded Petitioner "one more opportunity" to file his opposition, but she expressly warned him that failure to do so within 14 days could result in the Court's granting Respondent's motion on that basis. On June 3, 2013, the Magistrate Judge's minute order was returned to the Court by the U.S. Postal Service with a notation that there was "no authorization to receive mail for this address." To date, Petitioner has not filed any opposition to Respondent's motion or notified the Court of his current address.[1]


On August 23, 2010, Petitioner pleaded no contest to two counts of possessing an assault weapon (Cal. Penal Code § 12280(b) (2010)) and one count of possession of a deadly weapon, specifically, a "billy, " or police baton (Cal. Penal Code § 12020 (a) (2010)). (Pet. at 2; Mem. Supp. Pet. at 1; Lodged Doc. 1 at 1, 3; Lodged Doc. 7.) On December 2, 2010, Petitioner was sentenced to three years in state prison and granted 532 days of presentence credit. (Pet. at 2; Mem. Supp. Pet. at 6; Lodged Doc. 1 at 1; Lodged Doc. 7.)

On appeal, Petitioner's appellate counsel filed an opening brief but did not raise any claims in it. (See Lodged Doc. 1 at 2.) On August 23, 2011, Petitioner filed prose a brief raising four claims of ineffective assistance of trial counsel. (See id.) On September 11, 2011, Petitioner was released from prison on parole. (Lodged Doc. 6 at 4.)

On November 14, 2011, the court of appeal found "no evidence" that Petitioner had filed a certificate of probable cause, as required by California Penal Code section 1237.5 and Rule 8.304(b) (1) of the California Rules of Court.[2] (Lodged Doc. 1 at 4-5.) The court therefore "[did] not reach his claims that, in effect, challenge the validity of his plea." (Id. at 5.) The court noted, however, that it had "examined the entire record" and was "satisfied that [Petitioner's] attorney has fully complied with his responsibilities and that no arguable issues exist." (Id. at 6.) On December 5, 2011, Petitioner was placed on nonrevocable parole. (Lodged Doc. 6 at 4.)

On April 11, 2012, Petitioner filed a habeas petition in the state superior court. (Lodged Doc. 2, Attach.)[3] On May 1, 2012, Petitioner was discharged from his nonrevocable parole. (Lodged Doc. 6 at 4.) On May 7, 2012, the superior court denied the petition because it "contain[ed] only vague, conclusory allegations" and "failed to show a prima facie case for relief." (Lodged Doc. 2, Attach.)

On July 2, 2012, Petitioner filed a habeas petition in the state court of appeal, which summarily denied it on July 18, 2012. (Lodged Docs. 2, 3.) On September 27, 2012, Petitioner filed a habeas petition in the state supreme court, which summarily denied it on October 31, 2012. (Pet. at 4-5; Lodged Doc. 4.)[4]


Trial counsel rendered constitutionally ineffective assistance by "abandoning a motion to suppress without conducting reasonable investigation." (Pet. at 5.)


Pursuant to 28 U.S.C. § 2254(a), a federal 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." Section 2254(a)'s custody requirement "has been interpreted to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is under the conviction or sentence under attack at the time his petition is filed." Bailey v. Hill , 599 F.3d 976, 978-79 (9th Cir. 2010) (citation and internal quotation marks omitted); see also Maleng v. Cook , 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (per curiam) (interpreting§ 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"). Because the custody requirement is jurisdictional, "it is the first question [the court] must consider." Bailey , 599 F.3d at 978 (internal citation and quotation marks omitted).

"The boundary that limits the in custody' requirement is the line between a restraint on liberty' and a collateral consequence of a conviction.'" Id. at 979 (citation, some internal quotation marks, and alteration omitted). Thus, a petitioner on parole is considered to be "in custody." Jones v. Cunningham , 371 U.S. 236, 242-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963). Once the sentence imposed for a conviction has "completely expired, " however, the collateral consequences of that conviction are not sufficient to render an individual "in custody" for purposes of a habeas petition. Maleng , 490 U.S. at 492.

Petitioner was discharged from prison on September 11, 2011, and completed his parole term on May 1, 2012. (Lodged Doc. 6 at 4.) Petitioner filed his federal Petition more than eight months later, on January 17, 2013. Thus, Petitioner was not "in custody" when he filed his federal Petition. See Tatarinov v. Superior Ct., 388 F.Appx. 624, 625 (9th Cir. 2010) (noting that "a defendant is no longer in custody' once he is discharged from probation or parole"); see also Maleng , 490 U.S. at 492 ("While we have very liberally construed the in custody' requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction."). Although a petitioner may be "in custody" if his petition challenges a more recent conviction on the ground that its sentence was enhanced by virtue of the allegedly invalid earlier conviction, see Lackawanna Cnty. Dist. Attorney v. Coss , 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), here, Petitioner has not alleged that he was subsequently convicted of any offense. Indeed, he was not incarcerated at the time he filed his federal Petition. (See Pet. at 1 (showing nonprison address).) The Court therefore lacks jurisdiction to review the Petition.[5]


IT THEREFORE IS ORDERED that Judgment be entered granting Respondent's motion to dismiss and dismissing the Petition with prejudice.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.