(HC) Meza v. Bonwell ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 REINA MARIE MEZA, No. 1:19-cv-00919-DAD-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY RESPONDENT’S MOTION TO 13 v. DISMISS 14 MICHELLE BONWELL, Chief Probation [Doc. 17] Officer, 15 Respondent. 16 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant petition on June 20 27, 2019, challenging her 2018 conviction in Tulare County Superior Court of falsely reporting a 21 crime to law enforcement. (Doc. 1.) 22 On September 27, 2019, Respondent filed a motion to dismiss the petition for lack of 23 jurisdiction. (Doc. 17.) Petitioner filed an opposition to the motion on October 10, 2019. (Doc. 24 19.) On October 16, 2019, Respondent filed a reply to the opposition. (Doc. 20.) For reasons that 25 follow, the Court will recommend that Respondent’s motion be DENIED. 26 DISCUSSION 27 I. Procedural Grounds for Motion to Dismiss 28 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 1 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 2 petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 3 2254 Cases. 4 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer 5 if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 6 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using 7 Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. 8 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review 9 motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 10 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a 11 response, and the court should use Rule 4 standards to review the motion. See Hillery, 533 F. 12 Supp. at 1194 & n. 12. 13 In this case, Respondent's motion to dismiss is based on a lack of custody. Because 14 Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure 15 to exhaust state remedies or for state procedural default, and Respondent has not yet filed a 16 formal answer, the Court will review Respondent’s motion to dismiss pursuant to its authority 17 under Rule 4. 18 II. Custody 19 Pursuant to 28 U.S.C. § 2254(a), the Court “shall entertain an application for a writ of 20 habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on 21 the ground that [she] is in custody in violation of the Constitution or laws or treaties of the United 22 States.” (Emphasis added.) Thus, unless Petitioner is “in custody,” the Court is without 23 jurisdiction to entertain the petition. See Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 24 1998). However, the scope of the writ of habeas corpus has been extended beyond that which the 25 most literal reading of the statute might require to include individuals who, while not subject to 26 immediate physical imprisonment, suffer substantial restraints not shared by the public generally. 27 Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 510 (1982). 28 1 In this case, Petitioner served her term of thirty days in jail prior to filing her federal 2 petition. She also completed the three required counseling meetings prior to the federal filing. 3 However, the parties do not dispute that she is still on probation. Regardless of whether 4 Petitioner has completed certain conditions of probation, it is settled law in the Ninth Circuit that 5 the custody requirement is satisfied by the mere fact that she remains on probation. See Fowler v. 6 Sacramento County Sheriff’s Dept., 421 F.3d 1027, 1033 n. 5 (9th Cir. 2005) (“a petitioner is ‘in 7 custody’ for the purposes of habeas jurisdiction while [she] remains on probation”). Thus, 8 Petitioner is correct that the Court has habeas jurisdiction, and Respondent’s motion should be 9 denied. 10 RECOMMENDATION 11 Accordingly, the Court HEREBY RECOMMENDS that Respondent’s motion to dismiss 12 be DENIED, and Respondent be DIRECTED to file an answer to the petition. 13 This Findings and Recommendation is submitted to the United States District Court Judge 14 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 15 of the Local Rules of Practice for the United States District Court, Eastern District of California. 16 Within thirty (30) days after being served with a copy, any party may file written objections with 17 the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 18 Recommendation.” Replies to objections, if any, are due within ten (10) days after the date 19 objections are filed. The Court will then review the Magistrate Judge’s ruling pursuant to 28 20 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified 21 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 22 (9th Cir. 1991). 23 IT IS SO ORDERED. 24 Sheila K. Oberto 25 Dated: October 21, 2019 /s/ . UNITED STATES MAGISTRATE JUDGE 26 27 28