United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER
E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE
January 4, 2016, Alberto Hernandez ("Petitioner"),
a federal prisoner, filed a Petition for Writ of Habeas
Corpus by a Person in State Custody pursuant to 28 U.S.C.
§ 2254 ("Petition"). On April 18, 2016,
Respondent filed a Motion to Dismiss the Petition. On June 6,
2016, Petitioner filed an Opposition. Respondent did not file
a Reply. The Motion to Dismiss is now ready for decision.
reasons set forth below, the Motion to Dismiss should be
December 5, 2002, in Los Angeles County Superior Court case
number VA073089, Petitioner pled guilty to possession of a
cocaine base for the purpose of sale (Cal. Health & Safety
Code § 11351.5). That same day, the trial court
sentenced Petitioner to four years in state prison.
Petitioner did not appeal. (Respondent's Lodged Document
("LD") 1; Pet. at 2.)
November 19, 2014, Petitioner filed a petition for a writ of
coram nobis in the Los Angeles County Superior Court (LD 2),
which was denied on December 29, 2014. (LD 3.)
January 4, 2016, Petitioner filed the instant Petition.
Petitioner Was Not In Custody With Respect to Los Angeles
County Superior Court Case Number VA073089
at the Time the Petition Was Filed.
is a federal inmate who is in custody pursuant to a 2010
federal sentence and is incarcerated at the United States
Penitentiary in Hazelton, West Virginia. (Pet. at 1; Pet.
Memo. at 3.) According to Petitioner, his 2010 federal
sentence was enhanced by his California state-court
conviction in case number VA073089. (Pet. Memo. at 3.)
matter jurisdiction over habeas petitions exists only where,
at the time the petition is filed, the petitioner is "in
custody" under the conviction challenged in the
petition. See Maleng v. Cook, 490 U.S. 488, 490-91
(1989); Carafas v. LaVallee, 391 U.S. 234, 238
(1968); see also 28 U.S.C. §§ 2241(c)(3),
2254(a). A habeas petitioner does not rem ain "in
custody" once the sentence imposed for the conviction
has "fully expired." However, the "in
custody" requirement of 28 U.S.C. § 2254(a) is
satisfied where a petitioner is on parole. See
Maleng, 490 U.S. at 491; Jones v. Cunningham,
371 U.S. 236, 237-38 (1963).
is no longer serving a state sentence nor is he subject to
parole. He was released from state prison on November 9,
2004, and was placed on parole. (LD 6.) However, Petitioner
was discharged from parole on December 9, 2005, more than ten
years before he filed the instant Petition on January 4,
2016. (LD 6.) Thus, the Court lacks jurisdiction
over this matter and the Petition must be dismissed, as
Petitioner was not in state custody at the time the action
was commenced. See Maleng, 490 U.S. at 491.
Petitioner Cannot Collaterally Challenge His Conviction in
Case Number VA073089 Even Though It May Have Been ...