United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER GRANTING
RESPONDENTS' MOTION TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS [ECF No. 8].
William V. Gallo United States Magistrate Judge.
Fred Wooten (“Petitioner”) filed a pro
se Petition for Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. Section 2254
on January 17, 2017, which challenges his 2014 state
conviction. (See ECF No. 1.) Now before the Court is
Respondents' Scott Kernan, Secretary of the California
Department of Corrections and Rehabilitation, and Kamala D.
Harris, former Attorney General of California, 
(“Respondents”) Motion to Dismiss. Respondents
argue the Court should dismiss the Petition for lack of
jurisdiction, or in the alternative, for mootness.
(See ECF No. 8.)
reasons that follow, the Court RECOMMENDS the Motion be
GRANTED and the Petition DISMISSED with prejudice.
State Court Background
August 13, 2014, a jury convicted Petitioner of violating
California Penal Code Section 422, making a criminal threat.
(ECF No. 9-1 at 139.) On December 2, 2014, the state court
sentenced Petitioner to sixteen months in state prison. (ECF
No. 9-2 at 133.) At the time of that sentencing, Petitioner
was granted 641 days of credit for time served.
(Id.) Prior to this, on April 4, 2014, the United
States Marshals Service placed a detainer on Petitioner,
indicating Petitioner was wanted in a federal jurisdiction
for trial upon release from state custody. (ECF No. 9-2 at
131.) Petitioner was released from state custody and
transferred to federal custody on an unknown date. On or
around September 8, 2015, Petitioner was sentenced to 135
months in federal prison for unidentified charges (ECF No.1
December 8, 2014, Petitioner filed a direct appeal to the
California court of appeal claiming seven grounds for relief.
(See ECF Nos. 1 at 2, 9-8.) The court of appeal
affirmed the trial court's judgment in full in an
unpublished opinion issued on November 12, 2015. (ECF No.
9-11 at 1.) On December 14, 2015, Petitioner sought review in
the Supreme Court of California, raising the same seven
claims. (Id.) The petition for review was denied
without comment on February 17, 2016. (ECF No. 9-13.)
Petitioner did not seek collateral review of his claims.
Federal Court Background
January 17, 2017, Petitioner filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. Section 2254, which
sought to attack his 2014 state court conviction. (ECF No.
1.) On April 28, 2017, Respondents filed a motion to dismiss
arguing the court lacks jurisdiction or, in the alternative,
the Petition is moot. (See ECF Nos. 8, 8-1.) On June
5, 2017, Petitioner timely filed a Response in Opposition.
(ECF. No. 11.)
“In Custody” Requirement
Petitioner Does Not Meet The “In Custody”
Requirement Pursuant To § 2254
move to dismiss the Petition for lack of jurisdiction. (ECF
No. 8-1 at 1.) Respondents argue Petitioner does not fulfill
the “in custody” requirement pursuant to 28
U.S.C. § 2254 because he was not in state custody when
he filed the Petition. (Id.) In his reply to
Respondents' Motion to Dismiss, Petitioner concedes that
he had fully served his state ...