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Hernandez v. Harris

United States District Court, C.D. California

June 27, 2016

ALBERTO HERNANDEZ, Petitioner,
v.
KAMALA D. HARRIS, et al., Respondents.

          MEMORANDUM OPINION AND ORDER

          JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         On 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.

         For the reasons set forth below, the Motion to Dismiss should be granted.

         PROCEDURAL HISTORY

         On 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.[1] (Respondent's Lodged Document ("LD") 1; Pet. at 2.)

         On 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.)

         On January 4, 2016, Petitioner filed the instant Petition.

         DISCUSSION

         I. Petitioner Was Not In Custody With Respect to Los Angeles County Superior Court Case Number VA073089 at the Time the Petition Was Filed.

         Petitioner 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.)

         Subject 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).

         Petitioner 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.[2] (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.

         II. Petitioner Cannot Collaterally Challenge His Conviction in Case Number VA073089 Even Though It May Have Been ...


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