United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY RESPONDENT'S
MOTION TO DISMISS [DOC. 17]
K. OBERTO. UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in
forma pauperis with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner filed the
instant petition on June 27, 2019, challenging her 2018
conviction in Tulare County Superior Court of falsely
reporting a crime to law enforcement. (Doc. 1.)
September 27, 2019, Respondent filed a motion to dismiss the
petition for lack of jurisdiction. (Doc. 17.) Petitioner
filed an opposition to the motion on October 10, 2019. (Doc.
19.) On October 16, 2019, Respondent filed a reply to the
opposition. (Doc. 20.) For reasons that follow, the Court
will recommend that Respondent's motion be DENIED.
Procedural Grounds for Motion to Dismiss
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief in the district
court . . . .” Rule 4 of the Rules Governing Section
Ninth Circuit has allowed respondents to file a motion to
dismiss in lieu of an answer if the motion attacks the
pleadings for failing to exhaust state remedies or being in
violation of the state's procedural rules. See,
e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th
Cir. 1990) (using Rule 4 to evaluate motion to dismiss
petition for failure to exhaust state remedies); White v.
Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule
4 as procedural grounds to review motion to dismiss for state
procedural default); Hillery v. Pulley, 533 F.Supp.
1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a
respondent can file a motion to dismiss after the court
orders a response, and the court should use Rule 4 standards
to review the motion. See Hillery, 533 F.Supp. at
1194 & n. 12.
case, Respondent's motion to dismiss is based on a lack
of custody. Because Respondent's motion to dismiss is
similar in procedural standing to a motion to dismiss for
failure to exhaust state remedies or for state procedural
default, and Respondent has not yet filed a formal answer,
the Court will review Respondent's motion to dismiss
pursuant to its authority under Rule 4.
to 28 U.S.C. § 2254(a), the 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 [she] is in custody in
violation of the Constitution or laws or treaties of the
United States.” (Emphasis added.) Thus, unless
Petitioner is “in custody, ” the Court is without
jurisdiction to entertain the petition. See Williamson v.
Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998). However,
the scope of the writ of habeas corpus has been extended
beyond that which the most literal reading of the statute
might require to include individuals who, while not subject
to immediate physical imprisonment, suffer substantial
restraints not shared by the public generally. Lehman v.
Lycoming County Children's Services Agency, 458 U.S.
502, 510 (1982).
case, Petitioner served her term of thirty days in jail prior
to filing her federal petition. She also completed the three
required counseling meetings prior to the federal filing.
However, the parties do not dispute that she is still on
probation. Regardless of whether Petitioner has completed
certain conditions of probation, it is settled law in the
Ninth Circuit that the custody requirement is satisfied by
the mere fact that she remains on probation. See Fowler
v. Sacramento County Sheriff's Dept., 421 F.3d 1027,
1033 n. 5 (9th Cir. 2005) (“a petitioner is ‘in
custody' for the purposes of habeas jurisdiction while
[she] remains on probation”). Thus, Petitioner is
correct that the Court has habeas jurisdiction, and
Respondent's motion should be denied.
the Court HEREBY RECOMMENDS that Respondent's motion to
dismiss be DENIED, and Respondent be DIRECTED to file an
answer to the petition.
Findings and Recommendation is submitted to the United States
District Court Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of
the Local Rules of Practice for the United States District
Court, Eastern District of California. Within thirty (30)
days after being served with a copy, any party may file
written objections with the Court. Such a document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendation.” Replies to objections, if
any, are due within ten (10) days after the date objections
are filed. The Court will then review the Magistrate
Judge's ruling pursuant to 28 U.S.C. § 636