United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner has paid the filing fee. The matter was referred
to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 626(b)(1) and Local Rule 302(c).
raises the following four grounds in his federal habeas
petition: 1) factual innocence of California Pen. Code §
30600; 2) factual innocence of California Pen. Code §
311.11(a); 3) ineffective assistance of trial and appellate
counsel; and 4) the “unlawful removal of
[petitioner's] daughter from home.” ECF No. 1 at
6-7. Upon review of the petition, the respondent will be
directed to file a response to petitioner's habeas
petition as to Grounds one, two and three only. The
undersigned will recommend the dismissal of Ground four for
failure to state a cognizable federal claim.
of the Rules Governing Habeas Corpus Cases Under Section 2254
provides for summary dismissal of a habeas petition
“[i]f 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.” The Advisory
Committee Notes to Rule 8 also indicates that the court may
deny a petition for writ of habeas corpus, either on its own
motion under Rule 4, pursuant to the respondent's motion
to dismiss, or after an answer to the petition has been
filed. In the instant case, it is plain from the petition
that petitioner is not entitled to federal habeas relief as
to Ground four. Therefore, the undersigned will recommend
dismissal of Ground four.
2254(a)'s ‘in custody' requirement is
jurisdictional and therefore ‘it is the first question
we must consider.' See Williamson v. Gregoire,
151 F.3d 1180, 1182 (9th Cir.1998) (stating the same as to 28
U.S.C. § 2241's ‘in custody'
requirement).” Bailey v. Hill, 599 F.3d 976,
978 (9th Cir. 2010). “Custody” means that the
petitioner is incarcerated, or otherwise in significant
restraint of his liberty, and is bringing a claim challenging
the judgment/order underlying that incarceration/restraint.
See Panighetti v. Gastello, No. 2:19-cv-0015 MCE GGH
P, 2019 WL 5196391 (E.D. Cal. July 23, 2019). In the petition
for ground four, petitioner alleges his daughter was
unlawfully removed from the home and “parental
proceedings were conducted in a star chamber manner.”
ECF No. 1 at 7. Petitioner alleges there was “no
evidence to sug[g]est that [his daughter] had been harmed in
any way.” Id. While petitioner's concern
that his daughter was unlawfully taken from him could raise a
constitutional claim relating to federal parental rights,
Wallis v. Spencer, 202 F.3d 1126, 1136-1137 (9th
Cir. 2000), it in no way pertains to the fact of his
custody, and the claim should be dismissed from this
petitioner's Ground four should be dismissed for failure
to state a cognizable federal claim.
accordance with the above, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to assign a district
judge to this action;
2. Respondent is directed to file a response to
petitioner's habeas petition as to Grounds One, Two and
Three only within sixty days from the date of this order.
See Rule 4, 28 U.S.C. foll. § 2254. An answer
shall be accompanied by all transcripts and other documents
relevant to the issues presented in the petition.
See Rule 5, 28 U.S.C. foll. § 2254.
Respondent is directed to file the record
electronically in lieu of paper copies;
3. If the response to the habeas petition is an answer,
petitioner's reply, if any, shall be filed and served
within thirty days after service of the answer;
4. If the response to the habeas petition is a motion,
petitioner's opposition or statement of non-opposition to
the motion shall be filed and served within thirty days after
service of the motion, and respondent's reply, if any,
shall be filed and served within fourteen days thereafter;
5. The Clerk of the Court shall serve a copy of this order,
the form Consent to Proceed Before a United States Magistrate
Judge, and a copy of the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 on Tami Krenzin,
Supervising Deputy Attorney General.
FURTHER HEREBY RECOMMENDED that Ground Four be dismissed for
failure to state a cognizable federal claim.
Findings and Recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty-one
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Any response
to the objections shall be filed and served within fourteen
days after service of the objections. The parties are advised