Opinion
No. CIV S-06-1593 DFL KJM P.
April 5, 2007
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently housed in Louisiana. On November 8, 2006, the court recommended that this action be dismissed because petitioner had not paid the filing fee. Petitioner has now paid the filing fee. Therefore, the court will vacate the November 8, 2006 findings and recommendations.
Petitioner challenges a 1991 San Joaquin county conviction for grand theft. He was sentenced to one year in county jail. This court can only entertain a petition for writ of habeas corpus under 28 U.S.C. § 2254 on the ground that a person is in custody pursuant to the judgment of a state court in violation of the Constitution. It does not appear that petitioner is in custody pursuant to the judgment of a state court because petitioner is in federal custody and the sentence for the conviction petitioner challenges appears to have expired approximately fifteen years ago. For these reasons, the court will recommend that this action be dismissed.
Petitioner asks that the court stay this action while he appeals the court decision to deny petitioner's motion for the appointment of counsel. There does not appear to be any cause for a stay especially since the court's order denying petitioner's motion for appointment of counsel is not appealable. 28 U.S.C. § 1292(a).
In accordance with the above, IT IS HEREBY ORDERED that:
1. The court's November 8, 2006 findings and recommendations are vacated.
2. Petitioner's October 30, 2006 request for a stay is denied.
IT IS HEREBY RECOMMENDED that petitioner's application for writ of habeas corpus be dismissed.
These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).