FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner, a former jail inmate, is proceeding through counsel with an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the habeas petition for lack of jurisdiction, and as barred by the statute of limitations. For the reasons set forth below, respondent's motion should be granted.
1. On October 19, 1990, petitioner pled guilty to one count of possession of methamphetamine for sale, and admitted a sentencing enhancement. (ECF No. 1 at 33.) On November 30, 1990, petitioner was sentenced to 360 days in the Sacramento County Jail, with credit given for 72 days time served, and five years of formal probation. (ECF No. 1 at 33.) Petitioner did not appeal the conviction.
2. Petitioner's conviction became final on January 29, 1991.
3. Petitioner was deported in 1991 in a summary proceeding. (ECF No. 1-2 at 64, citing Exhibit M (ECF No. 1-1 at 89-91).) See ECF No. 1-1 at 63, referencing petitioner's May 17, 1991 arrest/detention/citation by the border patrol for illegal entry into the United States.
4. Petitioner's counsel filed a petition for writ of habeas corpus in the Sacramento County Superior Court on June 21, 2011. (ECF No. 1 at 35.) The Sacramento County Superior Court found that petitioner did not satisfy the "in custody" requirement for purposes of state habeas corpus, citing People v. Villa , 45 Cal.4th 1063, 1072 (2009), and dismissed the petition on August 10, 2011. (ECF No. 1 at 37.)
5. On September 6, 2011, petitioner, through counsel, filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (ECF No. 1 at 40.) The Court of Appeal denied the petition without comment on September 15, 2011. (ECF No. 1 at 42.)
6. On November 7, 2011, petitioner's counsel filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on December 14, 2011, with a citation to People v. Villa , 45 Cal.4th at 1063. (ECF No. 1 at 43, 45.)
7. On December 17, 2012, the instant action was filed. (ECF No. 1.)
III. Legal Standards - Motion to Dismiss
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, "[i]f it plainly appears from the face of the petition... that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal...." Respondent's pending motion to dismiss is brought pursuant to Rule 4.
A federal writ of habeas corpus is available under 28 U.S.C. § 2254 "only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp , 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac , 456 U.S. 107, 119 (1982)). "[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and... the traditional function ...