(HC) Prince v. Ramsey ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID SWANK PRINCE, No. 2: 20-cv-1962 TLN KJN P 12 Petitioner, 13 v. ORDER & FINDINGS & RECOMMENDATIONS 14 MICHAEL RAMSEY, 15 Respondent. 16 17 Petitioner is a prisoner, proceeding without counsel, with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. In the petition, filed September 30, 2020, petitioner alleges 19 that he is challenging the validity of his conviction for Butte County case no. 19CF04016. 20 Petitioner alleges that he was convicted of assault with a deadly weapon in violation of California 21 Penal Code § 245(a)(1). Petitioner raises two claims: 1) ineffective assistance of counsel; and 22 2) violation of Brady v. Maryland, 373 U.S. 83 (1963). 23 Butte County Superior Court records for case no. 19CF04016 indicate that on September 24 30, 2020, petitioner had been convicted of violating California Penal Code § 245(a)(1), but was 25 not yet sentenced. The Butte County Superior Court records indicate that a sentencing hearing is 26 scheduled for February 10, 2021. 27 The federal habeas statute gives district courts jurisdiction to entertain petitions 28 challenging a judgment of conviction only for persons who are “in custody” under the conviction 1 | at the time that the petition is filed. See, e.g., Maleng v. Cook, 490 U.S. 488, 490-91 (1989). 2 | Petitioner was not in custody under his conviction for violating California Penal Code § 245(a)(1) 3 | at the time he filed this action on September 30, 2020 because petitioner had not yet been 4 | sentenced for that offense in case no. 19CFO4016. See Fordjour v. Stewart, 2002 WL 1497792, 5 | *4(N.D. Cal. July 9, 2002). “Under California law there is no judgment of conviction prior to 6 | sentencing.” Id. (citing Cal. Pen. Code § 1237). Therefore, this court lacks jurisdiction to 7 | consider petitioner’s habeas corpus petition. See id. 8 On December 14, 2020, the undersigned ordered petitioner to show cause why this action 9 | should not be dismissed for lack of jurisdiction. (ECF No. 12.) On January 21, 2021, petitioner 10 | filed a response to the order to show cause titled “Motion to Show Cause for Jurisdiction.” (ECF 11 | No. 15.) After reviewing this pleading, the undersigned finds that petitioner has not demonstrated 12 | that the court has jurisdiction to consider his petition. 13 Accordingly, for the reasons discussed above, the undersigned finds that the court does 14 | not have jurisdiction to consider petitioner’s petition for writ of habeas corpus because petitioner 15 || was not in custody under the at-issue conviction at the time he filed the petition. 16 Accordingly, IT IS HEREBY ORDERED that petitioner’s January 21, 2021 motion (ECF 17 | No. 15) is construed as a response to the December 14, 2020 order to show cause; 18 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of 19 | jurisdiction. 20 These findings and recommendations are submitted to the United States District Judge 21 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 22 | after being served with these findings and recommendations, petitioner may file written 23 | objections with the court and serve a copy on all parties. Such a document should be captioned 24 || “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 25 | failure to file objections within the specified time may waive the right to appeal the District 26 | Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991), 27 | Dated: January 27, 2021 Pr1962.dis 28 FeAl Arn □ KENDALLJ_NE TINTITED STATES MA CTETE ATE TINncEe