United States District Court, C.D. California, Eastern Division
ORDER TO SHOW CAUSE
Douglas F. McCormick United States Magistrate Judge
On June 19, 2017,  Alasdair Murray McAulay
(“Petitioner”) constructively filed pro se a
Petition for Writ of Habeas Corpus by a Person in State
Custody, challenging his June 24, 2014 conviction by guilty
plea for elder abuse under circumstances likely to produce
great bodily harm. Dkt. 1 (“Petition”) at
The Petition raises five claims of ineffective assistance of
trial counsel. Id. at 5-7. On July 17, 2017,
Petitioner filed a “memorandum brief” in support
of the Petition. Dkt. 4 (“Memorandum”).
reasons discussed below, it appears that Petitioner may no
longer be in custody under his conviction and that the
Petition is untimely. Petitioner is therefore ordered to show
cause in writing by August 15, 2017, why the Petition should
not be dismissed with prejudice.
A. State-Court Proceedings
24, 2014, Petitioner pleaded guilty to charges of elder abuse
under circumstances likely to produce great bodily harm, and
he was sentenced to three years in prison. Petition at 2.
According to California's Appellate Courts Case
Information website, the trial court entered judgment on
January 6, 2015. See Appellate Cts. Case
for case no. E062851). Petitioner states that he did not
appeal, Petition at 2, but the Appellate Courts Case
Information website shows that on February 9, 2015, he lodged
pro se a notice of appeal in the California Court of Appeal.
See Appellate Cts. Case Information,
(search for case no. E062851). The court of appeal dismissed
the appeal on its own motion on March 24, 2015, and a
remittitur issued on May 27. Id. It does not appear
that Petitioner filed a petition for review with the
California Supreme Court.
on January 28, 2015, Petitioner filed a habeas petition in
the California Court of Appeal. See Appellate Cts.
Case Information, http://
for case no. E062758). The court denied the petition on
February 4, 2015. Id. On February 17, 2015,
Petitioner filed a habeas petition in the California Supreme
Court, which denied it on March 25. See Appellate
Cts. Case Information,
(search for case no. S224473).
April 4, 2016, Petitioner filed a habeas petition in the
Riverside County Superior Court, which denied it on April 5.
Petition at 3-4; Memorandum at 1. On June 10, 2016,
Petitioner filed a petition for writ of mandate in the
California Court of Appeal, which denied it on July
See Appellate Cts. Case Information,
(search for case no. E066163); Petition at 4. Petitioner
states that he filed a habeas petition in the California
Supreme Court on June 10, 2017, and on an unspecified date he
“received a no decision response to his
petition.” Memorandum at 2.
Jurisdiction “The federal habeas statute gives
United States district courts jurisdiction to entertain
petitions for habeas relief only from persons who are
‘in custody in violation of the Constitution
or laws or treaties of the United States.'”
Maleng v. Cook, 490 U.S. 488, 490 (1989) (per
curiam) (citation omitted, emphasis in original); see
also 28 U.S.C. § 2254(a) (“[A] district court
shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.”). The “in custody”
requirement is jurisdictional, and it requires that the
petitioner be in custody at the time the petition is filed.
Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir.
2010); see also Cook, 490 U.S. at 490-91 (“We
have interpreted the statutory language as requiring that the
habeas petitioner be ‘in custody' under the
conviction or sentence under attack at the time his petition
it appears Petitioner was no longer in jail or prison on June
19, 2017, when he constructively filed his Petition, but that
he was instead in the custody of U.S. Immigration and Customs
Enforcement at the Hudson County Correctional Facility in New
Jersey. See Petition at 10 (listing “Hudson
County Correctional Center, (ICE detainee)” as place of
detention on declaration in support of application to proceed
in forma pauperis), 12 (listing “Hudson County
Correctional Center” as return address on mailing
envelope); see also Memorandum at 10 (listing
“Hudson County Correctional Center” in signature
line), 12 (listing “Hudson County Correctional
Center” as return address on mailing
envelope). The immigration consequences of a
state-court conviction constitute collateral consequences and
do not satisfy the in-custody requirement for purposes of
determining whether subject-matter jurisdiction is lacking.
Resendiz v. Kovensky, 416 F.3d 952, 956-58 (9th Cir.
2005), abrogated on other grounds by Chaidez v. United
States, 568 U.S. 342 (2013); Gomez v. Adelanto Det.
Facility, No. 12-9417, 2013 WL 4500454, at *1-2 (C.D.
Cal. Aug. 21, 2013) (finding that petitioner whose state
sentence had expired but who was in federal custody for being
in country illegally did not satisfy “in custody”
requirement for purposes of federal habeas petition); Ali
v. Clark, No. 10-846, 2010 WL 5559393, at *1, *3 (W.D.
Wash. Dec. 16, 2010) (finding that petitioner who had
completed state-court sentence and who was being held in
immigration detention was not “in custody” for
purposes of federal habeas petition), accepted by
2011 WL 66024 (W.D. Wash. Jan. 10, 2011).
parole or probation term is sufficient to satisfy the
“in custody” jurisdictional requirement.
Jones v. Cunningham, 371 U.S. 236, 243 (1963);
Fowler v. Sacramento Cty. Sheriff's Dep't,
421 F.3d 1027, 1033 n.5 (9th Cir. 2005). If Petitioner
believes that he satisfies the “in custody”
requirement by virtue of any parole or probation term, he
should explain in his response to this Order whether he
received such a term and when it expired or is set to expire.
district court has the authority to raise the statute of
limitations issue sua sponte when untimeliness is obvious on
the face of a petition, and it may summarily dismiss the
petition on that ground under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, as
long as the court gives the petitioner adequate notice and an
opportunity to respond. Herbst v. Cook, 260 F.3d
1039, 1042-43 (9th Cir. 2001).
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a one-year limitation period applies
to a federal petition for writ of habeas corpus filed by a
person in state custody. See 28 U.S.C. §
2244(d)(1). In most cases, the limitation period begins
running from “the date on which the judgment became
final by the conclusion of ...