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Ghane v. California State Attorney General

United States District Court, C.D. California

July 9, 2016

ESMAIL GHANE, Petitioner




         On May 11, 2016, Petitioner Esmail Ghane filed a habeas petition pursuant to 28 U.S.C. § 2254 (“Petition”). The Petition seeks Section 2254 habeas relief with respect to a criminal case - Orange County Superior Court Case No. 02SF0387 - that was dismissed in 2004 (“Case 02SF0387”).

         On May 19, 2016, United States Magistrate Judge Gail J. Standish issued an Order to Show Cause [Dkt. 5, “OSC”]. The OSC directed Ghane to show cause why this case should not be dismissed for lack of jurisdiction. On June 6, 2016, Ghane filed his Response to the OSC [Dkt. 6].

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”) requires summary dismissal of Section 2254 petitions “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4, 28 U.S.C. foll. § 2254. The Court has reviewed the Petition and its attachments carefully, as well as the OSC and Ghane’s Response. In addition, pursuant to Federal Rule of Evidence 201, the Court has taken judicial notice of the dockets for California courts available through the Internet. Having completed its analysis, the face of the Petition demonstrates that Ghane is not “in custody” pursuant to the Conviction he now seeks to challenge, and nothing Ghane states in his Response changes that fact. As a result, the Court lacks jurisdiction over this case, [1] for the following reasons.


         In June 2002, Ghane was arraigned in Case 02SF0387. Earlier, Ghane had sustained a conviction in 2001, in Orange County Superior Court Case No. 00SF0418, following a guilty plea, and he had received probation in lieu of incarceration. On May 3, 2004, a probation revocation hearing occurred in the 00SF0418 case, and Ghane was sentenced to four years. On the same date, the charges alleged in Case 02SF0387 were dismissed. (See Petition at 2.) Ghane, thus, never suffered a conviction in Case 02SF0387.

         The attachments to the Petition and the state courts dockets available electronically show that Ghane - through appeals and state collateral proceedings - has sought to overturn the conviction he sustained in the 00SF0418 case.[2] These efforts, however, did not relate to Case 02SF0387, because as there was no conviction and the case had been dismissed, there was nothing that could be challenged.[3]


         Federal district courts are courts of limited jurisdiction, and this Court is under a continuing duty to evaluate its own jurisdiction. See Augustine v. United States, 704 F.2d 1074 (9th Cir.1983). Federal courts “are empowered to hear and determine only such causes as Congress has by statute provided.” Van Buskirk v. Wilkinson, 216 F.2d 725, 737 (9th Cir. 1954). “Without jurisdiction the court cannot proceed at all in any cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (citation omitted). Thus, federal courts have no power to consider claims for which they lack subject-matter jurisdiction. See Chen-Cheng Wang v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992).

         Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, when it appears that subject-matter jurisdiction is lacking, the Court “must dismiss the action” and may do so on its own initiative. See, e.g., Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 687 (9th Cir. 2003) (“This Court has the duty to consider subject matter jurisdiction sua sponte in every case, whether the issue is raised by the parties or not.”); Csibi v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (“[l]ack of subject matter jurisdiction can be raised by a court’s own motion at any time”). Indeed, federal courts are “obliged to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977). “[T]he court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction.” Augustine, 704 F.2d at 1077; see also Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). As federal courts “are courts of limited jurisdiction, ” a plaintiff bears the burden of establishing that his case is properly in federal court. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); see also In re Ford Motor Co./Citibank (South Dakota), N.A., 264 F.3d 952, 957 (9th Cir. 2001) (“The party asserting federal jurisdiction bears the burden of proving the case is properly in federal court.”).

         Petitioner seeks to make a Section 2254 habeas challenge. When a habeas petition is brought under Section 2254, a federal court has jurisdiction to consider federal habeas relief only if the petitioner is “in custody pursuant to the” conviction challenged by the petition. 28 U.S.C. § 2254(a); see also 28 U.S.C. § 2241(a) & (c)(3). The Supreme Court has made clear that, for federal jurisdiction to exist over a Section 2254 petition, the petitioner must be “in custody” “under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam); see also Bailey v, Hill, 599 F.3d 976, 978-79 (9th Cir. 2010) (same, and further observing that “Section 2254(a)’s ‘in custody’ requirement is jurisdictional and therefore ‘it is the first question we must consider’” (citation omitted)).

         In this action, Ghane seeks habeas relief in connection with Case 02SF0387, a state case that was dismissed over 12 years ago and that did not result in a conviction or sentence. He does not attack a state court “judgment, ” and he is not “in custody” pursuant to a state court judgment, with respect to these long dismissed state court charges. Thus, the requisites for federal habeas jurisdiction - a “state court judgment” pursuant to which Ghane actually is “in custody” - do not exist, and jurisdiction is lacking.

         In his Response to the OSC (at p. 3), Ghane argues that the Court should exercise jurisdiction over the Petition for two reasons: first, because the charges to which he pled guilty in the 00SF0418 case were baseless and fabricated, and he is innocent of them; and second, because he was incompetent before and at the time of his 2001 guilty plea in the 00SF0418 case and has remained incompetent since then. Ghane’s first contention goes to the merits of whether he should obtain relief in his separate habeas action challenging the 00SF0418 case and has no bearing on the “in custody” jurisdictional requirement. Ghane’s second assertion is made in the same sentence as his assertion that he has been “consci[enti]ously filing motions all along to present” asking the state courts to vacate his conviction in the 00SF0418 case. He avers that he “has gone about 1000 times to courts, attorneys, lib[raries], and various discoveries with about 100, 000 pages of document[s] for the past 16 years” trying to have that conviction set aside. (Response at 6.) Whether or not Ghane was and remains incompetent, it did not preclude him ...

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