Opinion
3:24-cv-00211-SLG
11-04-2024
BEN J. LATHAM, Petitioner, v. TREG TAYLOR, Respondent.[1]
ORDER OF DISMISSAL
SHARON L. GLEASON UNITED STATES DISTRICT JUDGE.
On September 24, 2024, Ben J. Latham, a self-represented petitioner, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Mr. Latham asserts four grounds for his petition. First, Mr. Latham appears to argue that the timeliness requirements of Alaska's post-conviction statutes are unconstitutional. Second, Mr. Latham argues “that the court was without jurisdiction to impose sentence.” Third, Mr. Latham asserts “that there exists evidence of material facts, not previously presented and heard by the court, that requires vacation of the conviction of sentence in the interest of justice[.]”Lastly, Mr. Latham asserts that he “was not afforded effective assistance of counsel at trial or on direct appeal.” The Petition does not include a request for relief. In support of his Petition, Mr. Latham includes the Petition for Hearing that he submitted to the Alaska Supreme Court. There, he argued that the trial court erred in dismissing his second post-conviction action: Ben Latham v. State of Alaska, Case No. 3AN-18-08176CI.
Docket 1.
Docket 1 at 3-4, Docket 1-1 at 34-37.
Docket 1 at 6.
Docket 1 at 7.
Docket 1 at 9.
See Docket 1. The Court notes that Docket 1 at 14 and 15 appear to replicate page nine of the Petition.
Docket 1-1; Petition for Hearing, Ben Latham v. State of Alaska (Alaska 2023) (No. S18653).
Docket 1-1 at 97-98.
On October 16, 2024, Mr. Latham filed a Motion to Amend Points of Appeal in Petitioner[‘s] Petition for Writ of Habeas Corpus. Mr. Latham requests the Court accept his Amended Points for Writ of Habeas Corpus at Docket 2, because the Court's form is inadequate to articulate his “some 24 points on Appeal.”
Docket 3.
Docket 3 at 1.
The Court takes judicial notice of Mr. Latham's underlying criminal convictions in State of Alaska v. Ben Latham, Case No. 3PA-86-1346CR and Case No. 3PA-86-1986CR. Additionally, the Court takes judicial notice of Mr. Latham's post-conviction proceeding in Ben Latham v. State of Alaska, Case No. 3AN-18-08176CI and the subsequent appellate actions at ¶ 13764, A14033, and S18553.
Judicial notice is the “court's acceptance, for purposes of convenience and without requiring a party's proof, of a well-known and indisputable fact; the court's power to accept such a fact.” Black's Law Dictionary (11th ed. 2019); see also Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in another tribunal are appropriate for judicial notice.”) (internal quotation marks and citation omitted); see also Fed. R. Evid. 201.
Id.
SCREENING REQUIREMENT
A court must “promptly examine” a habeas petition. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.”Upon screening, it plainly appears that Mr. Latham is not entitled to habeas relief pursuant to Section 2254 and his petition must be dismissed.
Rule 4(b), Rules Governing Section 2254 Proceedings for the United States District Courts.
Id.
DISCUSSION
A federal court lacks jurisdiction over claims of constitutional violations that are not within the “core of habeas corpus.” The core of habeas corpus is relief that “terminates custody, accelerates the future date of release from custody, [or] reduces the level of custody.” A writ of habeas corpus may only grant relief that if successful would “necessarily lead to his immediate or earlier release from confinement” or a “quantum change in the level of custody.”
Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc).
Id. at 929-30 (quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)).
Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc); Nettles v. Grounds (“Santos”), 788 F.3d 992, 1005 (9th Cir. 2015) (holding that a federal district court had habeas jurisdiction over a petitioner's claim asking for a disciplinary record to be expunged, because the expungement would lead to a speedier release from punitive segregation).
Federal district courts may review the judgment of a state court only on the ground that the Petitioner is “in custody in violation of the Constitution or the laws or treaties of the United States.” “Custody” is a jurisdictional requirement for habeas review under 28 U.S.C. § 2254. This requirement “is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.” While a petitioner need not be in actual, physical custody to access habeas review, a “petitioner must show that he is subject to a significant restraint upon his liberty ‘not shared by the public generally.'” For instance, a prisoner released on his own recognizance, bail, or parole constitutes being “in custody” for habeas review. A petitioner is not in custody under a fully expired conviction.
28 U.S.C. § 2245(a); see also Hensley v. Mun. Ct., San Jose Milpitas Jud. Dist., Santa Clara Cty., California, 411 U.S. 354, 351 (1973) (holding “[t]he custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.”).
Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010) (quoting Hensley, 411 U.S. at 351).
Wilson v. Belleque, 554 F.3d 816, 822 (9th Cir. 2009) (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963).
See Hensley, 411 U.S. at 351; Lefkowitz v. Newsome, 420 U.S. 283, 286 n.2, 291 n. 8 (1975); Jones, 371 U.S. at 242-43.
See Maleng v. Cook, 490 U.S. 488, 492 (1982) (per curiam).
Mr. Latham's underlying convictions stem from indictments issued in 1986.Mr. Latham states that he was sentenced to eight and one-half years prison with 18 months suspended and provides a prisoner number. He provides a local address on his filings with an apartment number. Moreover, Mr. Latham lists his place of confinement as “released from confinement and released from Prob[a]tion.” Plainly, the Petition presents facts showing that Mr. Latham is neither incarcerated, nor subject to a significant restraint upon his liberty that would constitute as being “in custody.”
The Court takes judicial notice that the trial courts of the State of Alaska mark the year of a case commencement by the two center digits in a case number. Supra note 2.
Docket 1 at 1.
Docket 3 at 1.
Docket 1 at 1.
CONCLUSION
Because Mr. Latham is not in custody, this Court does not have jurisdiction over his 28 U.S.C. § 2254 petition. Accordingly, the Court must dismiss the Petition for lack of jurisdiction.
IT IS THEREFORE ORDERED:
1. The Petition Under 28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
2. All pending motions are DENIED AS MOOT.
3. A Certificate of Appealability shall not issue.
2253(c)(2); See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability may be granted only if applicant made a “substantial showing of the denial of a constitutional right,” i.e., a showing that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further” (internal quotations and citations omitted)).