Summary
holding that firearm restrictions imposed by a restraining order were not significant restraints on petitioner's physical liberty
Summary of this case from Austin v. CaliforniaOpinion
No. C 02-01272 VRW (PR)
April 19, 2002
ORDER OF DISMISSAL
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a domestic violence restraining order imposed by the Superior Court of the State of California in and for the County of Contra Costa pursuant to California Family Code section 6220 et seq. Per order filed on March 27, 2002, the court dismissed the original petition with leave to amend so that petitioner may specify what restraints are placed upon him by the restraining order and, if possible, demonstrate that the restraints constitute a significant restraint upon his physical liberty not shared by the public generally. Petitioner promptly filed a First Amended Petition.
DISCUSSION
A. Standard of Review
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).
It 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." Id § 2243.
B. Analysis
Petitioner claims that he is entitled to seek federal habeas relief because he is "in custody" due to restraints placed on him by the terms of the restraining order at issue. He specifically alleges that under the terms of the restraining order "Petitioner is `prohibited from purchasing or attempting to purchase, receiving or attempting to receive, or otherwise obtain a firearm'" and that [t]hese provisions severely and immediately impose on the Petitioner significant restraints on Petitioner's physical liberty to do those things which in this country free people are entitled to do." First Am Pet at 2a.
The federal writ of habeas corpus is only available to persons "in custody" at the time their petition is filed. See 28 U.S.C. § 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). This requirement is jurisdictional. See id.
Although the custody requirement may be satisfied by restraints other than incarceration, a petitioner must demonstrate that he is subject to a significant restraint upon his physical liberty "not shared by the public generally." Jones v. Cunningham, 371 U.S. 236, 239-40 (1963). Here, the alleged restriction on petitioner's "right to keep and bear arms" is not the sort of significant restriction on his physical liberty necessary to render him "in custody" for purposes of the federal habeas statutes. See, e.g., Williamson v. Gregoire, 151 F.3d 1180, 1183-85 (9th Cir 1998) (sex offender registration statute does not place petitioner in custody because it does not place "a significant restraint . . . on physical liberty" by restricting the registrant's freedom to move about); cf Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir 1993) (mandatory attendance at alcohol rehabilitation program satisfies custody requirement because it requires petitioner's "physical presence at a particular place"). The court is without subject matter jurisdiction to entertain the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.
CONCLUSION
For the foregoing reasons, the petition is DISMISSED and the file ordered closed.