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Ochoa v. A. Cardenas

United States District Court, C.D. California

October 17, 2019

LEONARD LOUIE OCHOA, Petitioner,
v.
A. CARDENAS, Warden, Respondent.

          ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION

          KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         On September 30, 2019, Petitioner Leonard Louie Ochoa (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254.[1] (Dkt. 1 [“Petition”].) Petitioner alleges that the “S.F. Courthouse Clerk” lost his “Application/Petition for resentencing” and “Response” under Cal. Penal Code § 1170.18(b), (g). (Id. at 5.) Petitioner then argues that the discovery of new evidence, pursuant to Fed.R.Civ.P. 60(b), applies to his petition.[2] (Id. at 5-6.) Plaintiff appears to allege that he was released from state custody on September 20, 2017, and that he has completed his parole. (Id. at 1.)

         Pursuant to its screening authority under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts[3] and its obligation to consider sua sponte requirements concerning subject matter jurisdiction, Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997), the Court orders Petitioner to show cause why this action should not be dismissed for lack of jurisdiction.

         II.

DISCUSSION

         A. Legal Standard.

         Under § 2254 “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. § 2254(a). Because the “in custody” requirement of § 2254(a) is jurisdictional, the Court must consider it first. See Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (citing Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998)).

         Section 2254(a) uses the term “in custody” twice, with two different requirements. Id. The first usage (i.e., that the petition be filed “in behalf of a person in custody”) requires that the petitioner is “under the conviction or sentence under attack at the time his petition is filed.” Id. at 978-79, 983 n.6 (quoting Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005)). The custody requirement does not require that a prisoner be physically confined, Maleng v. Cook, 490 U.S. 488, 491 (1989), but it does require a “severe restraint” on the petitioner's liberty, Bailey, 599 F.3d at 980. Thus, for example, a petitioner who is on parole at the time of filing is considered to be in custody, see Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990), as is a petitioner on probation, see Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). A petitioner who files a habeas petition after he has fully served his sentence and who is not subject to court supervision is not “in custody” for the purposes of the court's subject matter jurisdiction and his petition is therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990).

         The second usage (i.e., that the application may be entertained “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”) requires “a nexus between the petitioner's claim and the unlawful nature of the custody.” Bailey, 599 F.3d at 978-80. In other words, success on the claim must result in a change in the restraint on the petitioner's liberty. Id. at 980; see also Heck v. Humphrey, 512 U.S. 477, 481-83 (1994) (habeas corpus claims that do not “call into question the lawfulness of the conviction or confinement[, ]” challenge the fact or duration of the petitioner's custody, or “seek[] immediate or speedier release, ” are not cognizable under § 2254).

         The Petition now pending is governed by 28 U.S.C. § 2244(b), which provides in pertinent part as follows:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been ...

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