United States District Court, C.D. California
ANDERSON UNITED STATES DISTRICT JUDGE
J. STANDISH UNITED STATES MAGISTRATE JUDGE
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
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].
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,  for the following reasons.
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.
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. 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.
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
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
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)).
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.
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 ...