ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, District Judge.
Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Under Rule 4 of the Rules Governing Section 2254 Cases, the court must conduct a preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears that petitioner is not entitled to relief in this court.
On August 30, 2000, petitioner was convicted in the Sacramento County Superior Court, and sentenced to three years in state prison. (ECF No. 1.) Petitioner alleges he suffered ineffective assistance of counsel, claiming defense counsel misrepresented to petitioner that the criminal charges would later be dismissed if petitioner pled "no contest, " and accepted the conviction. (ECF No. 1 at 16.) Petitioner claims counsel advised petitioner "that if petitioner pled no contest, ' shortly after release, the conviction would be removed from his record (upon setting a court date to do so)." (ECF No. 1 at 17.) Petitioner alleges that upon his release, he set up a court date, but his request was denied. Petitioner seeks to withdraw his "no contest" plea. Further, petitioner claims that he is "currently suffering enhancements and other prejudicial treatment" based on this 2000 conviction. (ECF No. 1 at 20.) Petitioner argues that California Penal Code § 1473 allows this court to consider the instant petition beyond the statute of limitations period provided in 28 U.S.C. § 2244(d) and to vacate the judgment of someone who is no longer unlawfully imprisoned. (ECF No. 1 at 13, 20.)
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 quotations omitted); see also Maleng v. Cook , 490 U.S. 488, 490-91 (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, internal quotation marks omitted). Thus, a petitioner on parole is considered to be "in custody." Jones v. Cunningham , 371 U.S. 236, 242-43 (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 (holding that a previous conviction cannot be challenged where petitioner has been released from prison and the only collateral consequence left from that conviction is the lengthening of a subsequent sentence).
Here, petitioner states that in 2000 he was sentenced to three years, and confirms he was released from custody. Petitioner does not claim that he was placed on parole at the time of his release, or that he remains on parole from the 2000 conviction at this time.
In addition, court records reflect that petitioner was subsequently convicted on June 10, 2011, and sentenced to seven years in state prison, Muhammad v. Diaz, 2:13-cv-0153 CMK (E.D. Cal.). Thus, it appears petitioner is presently in custody based on the 2011 conviction, not the 2000 conviction. This is further substantiated by petitioner's claim that he suffered an enhancement based on the 2000 conviction. (ECF No. 1 at 20.)
Finally, on May 22, 2013, the California Supreme Court denied the petition with citations to People v. Villa , 45 Cal.4th 1063 (2009). (ECF No. 1 at 19.) The citation to Villa indicates that the petition was denied because petitioner was no longer in actual or constructive state custody. See Villa , 45 Cal.4th at 1066, 1070-71 (holding that defendant who is not in state custody is ineligible for habeas relief and that collateral consequences of conviction, such as sex-offender-registration requirement, do not constitute constructive custody).
Therefore, the documents provided by petitioner demonstrate that he was not "in custody" for the 2000 conviction when he filed the instant 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."). Contrary to petitioner's argument, California Penal Code § 1473 does not provide a basis for jurisdiction for petitioner to challenge the 2000 conviction in this court.
Therefore, it is recommended that this action be dismissed for lack of jurisdiction.
In accordance with the above, IT IS HEREBY ...