United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on December 4, 2013. Respondent filed a "Motion to Dismiss, etc." on January 31, 2014. Petitioner filed "Petitioner's Opposition, etc." on February 25, 2014. Respondent filed a "Reply, etc." on March 18, 2014.
The Petition seeks to challenge a misdemeanor conviction for which the Superior Court placed Petitioner on probation (Petition at 2). Recently, the Superior Court revoked Petitioner's probation and issued a bench warrant based on Petitioner's failure to appear for a probation violation hearing ("Notice of Lodging, etc., " filed March 18, 2014, at 21). Respondent contends, inter alia, that the Petition should be dismissed under the fugitive disentitlement doctrine.
This Court should deny and dismiss the Petition without prejudice. A defendant's fugitive status "disentitles the defendant to call upon the resources of the Court for determination of his claims." Molinaro v. New Jersey , 396 U.S. 365, 366 (1970). This doctrine applies to habeas corpus petitioners in fugitive status. See, e.g., Gonzales v. Stover , 575 F.2d 827 (10th Cir. 1978); Moller v. Alameda, 2006 WL 778624, at *2-4 (N.D. Cal. March 24, 2006); Crawford v. Varner, 2002 WL 229898, at *2 (D. Del. Feb. 15, 2002); Morrell v. Kramer, 2001 WL 764947, at *6 (N.D. Cal. June 25, 2001); Clark v. Dalsheim , 663 F.Supp. 1095, 1096-97 (S.D.N.Y. 1987); see also Conforte v. Commissioner of Internal Revenue , 692 F.2d 587, 590 (9th Cir. 1982) (citing with approval United States ex rel Bailey v. Commanding Officer , 496 F.2d 324, 326 (1st Cir. 1974), a First Circuit case applying the fugitive disentitlement doctrine to a habeas corpus petitioner). The Court should not entertain the Petition while Petitioner remains a fugitive from the very criminal proceeding of which he seeks federal review. See id.
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying ...