Opinion
Case No.: 17cv1525 BEN (BGS)
08-20-2017
JONATHAN CHAMPEAU, Petitioner, v. SUPERIOR COURT OF CALIFORNIA, ORANGE COUNTY, Respondent.
ORDER DISMISSING CASE WITHOUT PREJUDICE
Petitioner, proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
FAILURE TO SATISFY FILING FEE REQUIREMENT
Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254.
JURISDICTIONAL CUSTODY REQUIREMENT
Petitioner is not currently in either actual or constructive custody, and thus this Court does not have habeas jurisdiction. A habeas petitioner who challenges a state court conviction must establish he is "in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). Current imprisonment or constructive custody, such as a petitioner's status on probation or parole, is required to satisfy the custody requirement. See, e.g., Jones v. Cunningham, 371 U.S. 236, 243 (1963) (parole); United States v. Span, 75 F.3d 1383, 1386 n.5 (9th Cir. 1996) (probation); United States v. Gaudin, 28 F.3d 943, 965 (9th Cir. 1994) (en banc) (probation).
CONCLUSION
For the foregoing reasons, the Court DISMISSES this action without prejudice. The Court notes that if Petitioner can satisfy the custody requirement by virtue of being imprisoned, or being on probation or parole, the proper venue for a challenge to his conviction pursuant to 28 U.S.C. § 2254 would be the United States District Court for the Central District of California, Southern Division because his conviction occurred in Orange County. See 28 U.S.C. (c)(3). DATED: 8/20/2017
/s/_________
Roger T. Benitez
United States District Judge