United States District Court, E.D. California
M. COTA UNITED STATES MAGISTRATE JUDGE.
Petitioner, now a former state prisoner proceeding pro se,
brings this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Pursuant to the written consent of all
parties (ECF Nos. 12 and 14), this case is before the
undersigned as the presiding judge for all purposes,
including entry of final judgment. See 28 U.S.C.
§ 636(c). Pending before the court is Respondent's
motion to dismiss (ECF No. 15), Petitioner's opposition
(ECF No. 20), and Respondent's reply (ECF No. 23).
Respondent argues the instant federal petition should be
dismissed because petitioner has been released from custody.
was convicted on March 24, 2014, in the Sacramento County
Superior Court on fifty-two counts of grand theft, and
sentenced on April 25, 2014, to a term of thirteen years and
four months in state prison. See ECF No. 1, at 1.
Petitioner only appealed on one ground; the trial court had
miscalculated Petitioner's presentencing jail credits.
See id. at 32. The credit miscalculation was
corrected and the California Court of Appeal, Third District,
affirmed the conviction and sentence on December 10, 2015.
Id. Petitioner filed the instant federal habeas
corpus petition on November 27, 2017. See ECF No.
15, at 2. Petitioner was released from the California
Department of Corrections and Rehabilitations and placed on
Post Release Community Supervision on December 1, 2017.
Id. On July 12, 2018, Petitioner was discharged from
post release supervision pursuant to California Penal Code
§ 3456(a)(2) after completing six consecutive months on
release with no violations of Petitioner's conditions of
post release supervision that resulted in a custodial
“party moving for dismissal on mootness grounds bears a
heavy burden.” Coral Const. Co. v. King Cty.,
941 F.2d 910, 927 (9th Cir. 1991). Here, the Court finds
Respondent has failed to meet his burden because he has not
made an argument in his motion to dismiss that is both
persuasive and supported by proper legal authority. Rather,
it appears Respondent misunderstands habeas law generally, as
Respondent's repeated misapplication of the law resulted
in improper arguments that necessarily lead to the conclusion
that Respondent has failed to carry his burden. This alone is
sufficient to deny the motion to dismiss. Even applying
proper legal standards, the court still finds dismissal would
case proceeds on a petition for writ of habeas corpus filed
pursuant to 28 U.S.C.A. § 2254(a), which states:
The Supreme Court, a Justice thereof, a circuit judge, or 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.
28 U.S.C.A. § 2254(a) (emphasis added).
alleges that because Petitioner was released from custody
seven months after he filed his habeas petition with
the federal court, “Respondent therefore no longer has
any custody of Petitioner to defend, and Petitioner no longer
has any Respondent-imposed constraint on liberty of which he
could complain.” See ECF No. 15, at 5. The
Court finds this argument flawed and unpersuasive. Respondent
cites Bailey v. Hill to illustrate the difference
between the two statutory “in custody”
requirements, but Respondent misunderstands the distinction
and improperly analyzes this case to support his contentions.
599 F.3d 976, 978-79 (9th Cir. 2010). Regarding the two
“in custody” requirements, Bailey
We note that § 2254(a) deploys the term “in
custody” twice. The first requirement is that the
petition be filed “in behalf of a person in custody,
” and the second is that the application for the writ
of habeas corpus can only be entertained “on the ground
that [the petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). Although the precedents that we
review herein generally speak of the “in custody”
requirement, it can be seen literally that this statutory
requirement has two distinct aspects.
Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010).
affirms the first statutory use of “in custody”
means the “petitioner must be in custody at the time
that the petition is filed.” Id. at 979.
Bailey further states that “the
petitioner's subsequent release from custody does not
itself deprive the federal habeas court of its statutory
jurisdiction” because “physical custody is not
indispensable to confer jurisdiction.” Id.
(internal quotation marks omitted). In Bailey, the
Ninth Circuit establishes the first “in custody”
requirement is simply that the habeas petition must have been
filed while the prisoner was “in ...