Opinion
No. CIV S-07-2055-WBS-CMK-P.
October 20, 2008
ORDER
Petitioner, who is proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules.
On September 16, 2008, the magistrate judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations have been filed.
The magistrate judge has recommended dismissal of the petition because petitioner fails to meet the "in custody" requirement of § 2254(a). In his objections, petitioner asserts that the findings and recommendations should not be adopted because the magistrate judge stated that the Yolo County Chief Probation Officer is not the correct respondent, whereas in earlier findings and recommendations the magistrate judge stated that this was the correct respondent. However, in the prior findings and recommendations, the magistrate judge stated that the Yolo County Chief Probation Officer was the correct respondent based on the belief at that time that petitioner was a probationer. As petitioner admits in his objections to the current findings and recommendations, his period of probation has ended.
Petitioner also argues for the first time that this action can still proceed despite termination of his probation because he is challenging "the unjust banishment probation condition," which he asserts is a collateral consequence providing standing. Specifically, petitioner states that, as a condition of his probation, he has been banished from the University of California, Davis, campus. Petitioner's citation to Trop v. Dulles, 356 U.S. 86 (1958), in support of this proposition is unavailing. That case was an immigration case in which the Supreme Court discussed Congress' war powers in the context of expatriation of a person who was convicted by a court martial of desertion during wartime. The facts remain in this case that petitioner is not in custody and not on probation.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed September 16, 2008, are adopted in full;
2. Petitioner's request to amend his petition is denied;
3. This action is dismissed; and
4. The Clerk of the Court is directed to enter judgment and close this file.