United States District Court, N.D. California
February 26, 2015
WALTER CHUNN III, Petitioner,
FIRST APPELLATE DISTRICT COURT, Respondent.
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION
MARIA-ELENA JAMES, Magistrate Judge.
Petitioner, proceeding pro se, has filed a habeas corpus petition challenging his state court convictions for lewd acts and unlawful sexual intercourse with a minor. According to the petition, petitioner pleaded nolo contendere to these felony offenses in the Alameda County Superior Court in 2003. He states that he was sentenced to three years and eight months in state prison. Petitioner filed the instant petition in 2014 and argues that "[t]his case is not moot" because he continues to be required to register as a sex offender under California Penal Code § 290. Docket #1 at 3. He alleges that he is in custody serving the term but does not state the nature of that custody. Docket #6 at 3.
Petitioner does not appear to satisfy the requirement that he be "in custody" on the conviction he is attempting to challenge. The federal writ of habeas corpus is only available to persons "in custody" at the time the petition is filed. See 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). This requirement is jurisdictional. Id. A petitioner who files a habeas petition after he has fully served his sentence and who is not subject to court supervision is not "in custody" for the purposes of this court's subject matter jurisdiction and his petition may therefore be properly denied. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). [M]erely being subject to a sex offender registry requirement does not satisfy the in custody' requirement." Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). See also Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999) (California law which requires convicted sex offenders to annually register with state authorities does not constitute severe, immediate restraint on physical liberty sufficient to constitute custody).
In sum, the petition suggests that petitioner does not meet the custody requirement on the conviction he challenges. Although he was an inmate at the Solano County Jail at the time he filed the instant action, he also stated that the sentence of three years and eight months was imposed back in 2003; thus it should have been completed long before the filing of this action. Petitioner does not state the reason for his recent incarceration at the Solano County Jail. If, at the time he filed the instant petition, he was incarcerated for failing to comply with the sex offender registration statute, he will be deemed "in custody" for purposes of challenging the 2003 sex offense conviction in Alameda County because this earlier conviction was "a necessary predicate'" to the failure-to-register charge. Zichko, 247 F.3d at 1019-20 (citation omitted). Petitioner is also advised that a petitioner who is on parole for the challenged conviction at the time of filing is considered to be in custody, see Jones v. Cunningham, 371 U.S. 236, 241-43 (1963) and Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on probation for the challenged conviction, see Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005).
Accordingly, petitioner is hereby ordered to show cause on or before March 31, 2015 why his petition should not be dismissed for lack of jurisdiction. Petitioner may label his response as "response to order to show cause." The response should explain how he met the custody requirement at the time he filed the instant action. If petitioner fails to respond to this order to show cause, the action will be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
The application to proceed in forma pauperis is GRANTED. The Clerk shall terminate Docket #2.
Finally, pursuant to petitioner's request (docket #19), the Clerk shall send petitioner a copy of the docket in this action, a photocopy request form, and a copy of his petition (docket #6).
IT IS SO ORDERED.