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


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  •                             NOT FOR PUBLICATION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.
    

Document Info

Docket Number: 12-55908

Citation Numbers: 585 F. App'x 642

Judges: Pregerson, Tallman, Bea

Filed Date: 11/17/2014

Precedential Status: Non-Precedential

Modified Date: 10/19/2024