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McAulay v. State

United States District Court, C.D. California, Eastern Division

July 25, 2017

ALASDAIR MURRAY McAULAY, Petitioner,
v.
STATE OF CALIFORNIA Respondents.

          ORDER TO SHOW CAUSE

          Douglas F. McCormick United States Magistrate Judge

         Order On June 19, 2017, [1] 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 2.[2] 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”).

         For the 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

         On June 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 Information, http:// appellatecases.courtinfo.ca.gov/search.cfm?dist=42 (search 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, http://appellatecases.courtinfo.ca.gov/ search.cfm?dist=42 (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.

         Meanwhile, on January 28, 2015, Petitioner filed a habeas petition in the California Court of Appeal. See Appellate Cts. Case Information, http:// appellatecases.courtinfo.ca.gov/search.cfm?dist=42 (search 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, http://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search for case no. S224473).

         On 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 1.[3] See Appellate Cts. Case Information, http://appellatecases.courtinfo.ca.gov/ search.cfm?dist=42 (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.

         B. 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 is filed.”).

         Here, 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).[4] 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).

         A 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.

         C. Timeliness

         A 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).

         1. Accrual Date

         Under 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 ...


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