Opinion
2:23-cv-02014-DAD-JDP (HC)
11-30-2023
DAVID DANIEL CEPEDA, Petitioner, v. ROB BONTA, Respondent.
ORDER
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE
Petitioner, who is living in New Mexico and appears to no longer be incarcerated, seeks a writ of habeas corpus under 28 U.S.C. § 2254. After reviewing his initial petition, I find that it fails to state a cognizable claim. I will give him leave to amend before recommending the petition be dismissed, however. Additionally, I will grant his application to proceed in forma pauperis. ECF No. 2.
The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).
Petitioner raises claims related to a 2008 conviction and his placement on a sex offender registry. ECF No. 1 at 1-2, 4-5. The latter claims are not cognizable because placement on a sex offender registry does not render petitioner “in custody” for habeas purposes, and section 2254 relief is thus unavailable on those claims. See Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998). And, given that this petition was filed in September 2023, any claims related to petitioner's conviction in 2008 appear, even allowing for possible tolling, well past the one-year statute of limitations for federal habeas actions set by the Anti-Terrorism and Effective Death Penalty Act. See Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005).
I will give petitioner an opportunity to amend and explain why this action should still proceed.
It is ORDERED that:
1. The Clerk of Court is directed to send petitioner a federal § 2254 habeas form.
2. Within thirty days of this order's entry, petitioner may file an amended habeas petition. If he does not, I will recommend this action be dismissed.
3. Petitioner's application to proceed in forma pauperis, ECF No. 2, is GRANTED.
IT IS SO ORDERED.