Opinion
No. C 03-1773 MMC (PR), (Docket Nos. 2, 4, 7, 9)
October 16, 2003
ORDER OF DISMISSAL; ORDER RE: PENDING MOTIONS
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. Petitioner challenges a 1986 conviction obtained in California in the Alameda County Superior Court, which conviction, petitioner 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.
BACKGROUND
On August 16, 1986, petitioner, having pled guilty to charges of obtaining property by false pretenses, was placed on probation for a period of one year and sentenced to serve twenty days in jail as a condition thereof. Petitioner did not file a direct appeal. In 2002, however, he filed habeas petitions in all three levels of the California courts, which petitions, in each instance, were denied.
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, however, may not challenge his 1986 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 under 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 purposes of a federal district court's subject matter jurisdiction, and his petition is therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). Here, petitioner, in his petition, indicates that he was sentenced on August 18, 1986 to twenty days as a condition of one year of probation. As the sentence has long since expired, petitioner is no longer in custody on that conviction.
Petitioner asserts he nonetheless is "in custody" on the 1986 California conviction because it constitutes the basis for the deportation order issued against him by the INS. This circumstance 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 1986 conviction, this Court lacks jurisdiction to decide the petition.
The issuance of the deportation order against petitioner places petitioner in the custody of the INS. See Nakaranurack v. United States. 68 F.3d 290, 293 (9th Cir. 1995). Petitioner indicates he currently is 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 the dismissal, petitioner's motions for an immediate decision on the petition are DENIED as moot. Additionally, petitioner's applications to proceed in forma pauperis are DENIED as moot, as petitioner has paid the filing fee.
This order terminates docket numbers 2, 4, 7, and 9.
The Clerk shall close the file.
IT IS SO ORDERED.