Essie Simpson, III v. John Marshall , 585 F. App'x 642 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ESSIE SIMPSON, III, No. 12-55908
Petitioner - Appellant, D.C. No. 2:09-cv-01825-MMM-
AGR
v.
JOHN MARSHALL, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted October 8, 2014
Pasadena, California
Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.
Essie Simpson III appeals the district court’s denial of his petition for the
writ of habeas corpus. His appeal seeks to invalidate his guilty plea in California
state court to one count of possession of PCP for sale on the grounds that his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
attorney was ineffective for failing to advise him that a guilty plea would require
Simpson to register as a gang member. We affirm.
We consider sua sponte any requirement that “goes to subject matter
jurisdiction.” Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012). 28 U.S.C. § 2254(a)
imposes a two-part jurisdictional test in habeas cases. First, the petitioner must be
“in custody” when the petition is filed. Second, he must be challenging “the
judgment of a State court only on the ground that he is in custody in violation of”
federal law. 28 U.S.C. § 2254(a). To be “in custody,” Simpson must be subject to
a sentence that “somehow limits [his] movement.” Williamson v. Gregoire, 151
F.3d 1180, 1183 (9th Cir. 1998).
Simpson fails to satisfy the second prong, because he is subject only to gang
registration, and cannot be granted relief from a completed prison sentence.1 Thus,
the remedy Simpson seeks “does not directly impact” his liberty. Bailey v. Hill,
599 F.3d 976, 981 (9th Cir. 2010). Since Simpson’s liberty is not restricted, this
1
California gang registration requires that Simpson register with the chief
of police of the city in which he resides, and notify the chief of police of any city to
which he moves within ten days. California Penal Code § 186.30. This is identical
to the sex offender registration requirement that was held not to constitute custody
in Williamson, except that Williamson had 14 days to register, not 10. There is no
restriction as to where Simpson can reside, either in California or out of state.
Further, there is no requirement Simpson either notify authorities, nor seek their
approval, should he wish to change residences.
court lacks habeas jurisdiction, and the district court’s judgment denying the writ
of habeas corpus is AFFIRMED.
FILED
Simpson v. Marshall, No. 12-55908 NOV 17 2014
MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I dissent because I believe Simpson satisfies the second prong of the
jurisdictional test stated in Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010).
Simpson contends that his guilty plea was not knowingly made but was the result
of ineffective assistance of counsel because counsel failed to advise him on the
gang registration requirement. In other words, Simpson challenges the legality of
his conviction and subsequent custody on the ground that it was imposed in
violation of federal law. I agree with both parties that, under Bailey, this is enough
to satisfy the second prong. Id. Accordingly, I would find jurisdiction and proceed
to consider the merits of the habeas petition.