United States District Court, S.D. California
ORDER: (1) REJECTING THE REPORT AND RECOMMENDATION,
(DOC. NO. 13); AND (2) DENYING RESPONDENT'S MOTION TO
DISMISS THE HABEAS PETITION, (DOC. NO. 8)
Anthony J.Battaglia United States District Judge
the Court is Respondent Scott Kernan's motion to dismiss
Petitioner William Fred Wooten's petition for Writ of
Habeas Corpus. (Doc. No. 8.) In the Report and
Recommendation, the Magistrate Judge recommended granting
Kernan's dismissal motion. (Doc. No. 13.) For the reasons
stated herein, the Court REJECTS the R&R and DENIES
Kernan's motion to dismiss.
January 17, 2017, William Fred Wooten filed a pro se petition
for Writ of Habeas Corpus under 28 U.S.C. § 2254,
challenging his 2014 state conviction. (Doc. No. 1.) Wooten
was released from state prison on either December 2, 2014, or
December 4, for time served. (Doc. No. 14 at 6 (showing the
date of Wooten's hearing as 12/2 but the date the
judgment was signed and the sentence was pronounced on 12/4.
Either way, Wooten was released as his
“[p]re-confinement credits equal or exceed time
imposed.”).) Wooten, however, was subject to three
years of parole at the expiration of his term of imprisonment
by statute, and was required to report to the CDCR Parole
Office within 72 hours of his release. See Cal.
Penal Code § 3000(b)(2)(B); (Doc No. 14 at 6.) Thus,
Wooten is still on parole until at least December 2, 2017.
motion to dismiss argued that Wooten's petition should be
denied for lack of jurisdiction. (Doc. No. 8-1 at 2.)
Particularly, Kernan alleges a lack of jurisdiction because
(1) Wooten does not meet the “in custody”
requirements of § 2254, and (2) Wooten's petition is
now moot. (Id. at 2-4) The R&R agreed, finding
the motion should be granted for the same jurisdictional
issues. (Doc. No. 13.) Wooten objected to the R&R,
arguing he is indeed in custody because he is on parole and
that his case is not moot. (Doc. No. 14 at 2-3.)
court shall make a de novo determination of those portions of
the [report and recommendation] to which objection is
made.” 28 U.S.C. § 636(b)(1). The “statute
makes it clear that the district judge must review the
magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise.” United
States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (emphasis in original); see Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1225-26 & n. 5 (D.
Ariz. 2003) (applying Reyna- Tapia to habeas
threshold matter, the R&R suggested Wooten should have
filed his petition under § 2255. (Doc. No. 13 at 4-5.)
However, the Court finds Wooten correctly filed under §
2254 because he is not attacking his federal sentence, but
his state court convictions, and he is still in state court
custody. See Daniels v. United States, 532 U.S. 374
“In Custody” Requirement Under Section
§ 2254, “a district court shall entertain an
application for a writ of habeas corpus on 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.”
28 U.S.C. § 2254(a). Moreover, the Supreme Court has
held that “once a conviction for a sentence has
completely expired, ” a petitioner is not considered
“in custody” for purposes of filing a Petition.
Maleng v. Cook, 490 U.S. 488, 492 (1989). Section
2254's “in custody” requirements, however,
“has not been restricted to situations in which the
applicant is in actual, physical custody.” Jones v.
Cunningham, 371 U.S. 236, 239 (1963). In Jones,
the Supreme Court held that a petitioner who is still on
parole under a state conviction meets the “in
custody” requirements of § 2254 to challenge that
state conviction for which he or she was paroled.
Id. at 243-44. For purposes of bringing a habeas
petition, the Ninth Circuit has held that a petitioner need
only be “in custody” when the petition was
filed-which Wooten was. See Maleng, 490
U.S. at 490 (“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.”).
present case, Wooten was released from state prison for time
served on December 2, 2014, (or December 4), and, as stated
twice on the Felony Abstract of Judgment form, he was ordered
to report to the Parole Office. (Doc. No. 14 at 6 ¶ 4,
(“Defendant ordered to report to local parole or
probation office upon . . .”), and ¶ 8,
(“Defendant ordered to report to the CDCR Parole Office
at 765 3rd Ave, Suite 300, Chula Vista, CA 91942 within 72
hours.”).) Under California Penal Code §
3000(b)(2)(B), an inmate is released on parole for three
years “at the expiration of a term of imprisonment of
one year and one day” if his or her “crime [was]
committed on or after July 1, 2013.” California Penal
Code § 3000 applies to Wooten because he was released in
2014, and he committed a felony described within §
1192.7. See Cal. Penal Code §§ 3000(b),
3000.08(a). Accordingly, Wooten is still on parole until at
least December 2, 2017.
Wooten is still in state custody for purposes of filing a
petition under § 2254 to challenge his state court
conviction, and, therefore, the Court has jurisdiction over
Wooten's Claim For ...