Opinion
No. C 03-2539 MMC (PR), (Docket Nos. 3, 5)
October 20, 2003
ORDER OF DISMISSAL; DENYING PENDING MOTIONS; INSTRUCTIONS TO COURT'S FINANCE OFFICE
Petitioner is a prisoner currently incarcerated in a state prison in Arizona. He has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a 1987 conviction obtained in the Contra Costa County Superior Court, which conviction, he alleges, is the basis for an order of removal entered against him by the Immigration and Naturalization Service ("INS"). He has paid the filing fee.
In another habeas petition filed at approximately the same time as the instant petition petitioner paid $10.00 as a filing fee, twice the amount required. Accordingly, the Court's finance office shall apply $5.00 from the filing fee paid in case No. 03-1773 MMC (PR) (formerly No. 03-1773 JF (PR)), to and in payment of the filing fee in the instant action.
BACKGROUND
In 1987, petitioner received a sentence of two years after a jury convicted him of obtaining credit by false pretenses. Petitioner's direct appeals failed, and his subsequent habeas petitions in all three levels of the California courts were-unsuccessful.DISCUSSION
This Court may entertain a petition 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); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).Petitioner may not challenge his 1987 California conviction because he is not in custody on that conviction. The federal writ of habeas corpus is only available to persons "in custody" at the time the petition is filed. See 28 U.S.C. § 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238(1968). This requirement is jurisdictional. See id. A habeas petitioner must be in custody for the conviction or sentence under attack at the time the petition is filed. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989). 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 this court's subject matter jurisdiction, and his petition is thus properly denied. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). In his petition, petitioner indicates that he received a two-year sentence in 1987. As the sentence has long since expired, he is no longer in custody on that conviction.
Petitioner nonetheless claims to be "in custody" on the 1987 California conviction because it constitutes the basis for the deportation order issued against him by the EMS. This does not satisfy § 2254's custody requirement. INS deportation proceedings are a collateral consequence of state court convictions. See Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir. 1976). Collateral consequences of a conviction are "not themselves sufficient to render an individual `in custody' for the purposes of a habeas attack upon it." Maleng 490 U.S. at 492. Accordingly, as petitioner is not in custody on the 1987 California conviction he challenges in this petition, this Court lacks jurisdiction to decide the petition.
The issuance of the deportation order places petitioner in the custody of the INS. See Nakaranurack v. United States. 68 F.3d 290, 293 (9th Cir. 1995). Petitioner indicates that he is currently challenging his deportation before the Bureau of Immigration Appeals.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DISMISSED.
In light of this order, petitioner's motion for an immediate decision on this petition is DENIED as moot.
This order terminates Docket Nos. 3 and 5.
The Clerk shall close the file.
IT IS SO ORDERED.