(HC)Sjodin v. State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KIRK ARDELL SJODIN, JR, Case No. 1:23-cv-00236-ADA-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION THAT THE PETITION FOR WRIT OF HABEAS 13 v. CORPUS BE DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND 14 STATE OF CALIFORNIA, et al.1 (Doc. 1) 15 Respondent. TWENTY-ONE DAY DEADLINE. 16 17 18 Petitioner Kirk Ardell Sjodin, Jr., (“Petitioner”) is a former California state prisoner 19 proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). 20 The petition seeks review of a judgment of conviction in the Superior Court of California for the 21 County of Kern. Id. 22 Preliminary Screening 23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 24 review of each petition for writ of habeas corpus. Pro se habeas corpus petitions are to be liberally 25 26 1 Petitioner filed this petition against Respondents the “State of California” and the “Kern 27 County Commissioners District Attorney,” neither of which are the appropriate respondent. (Doc. 1). See Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam) (“The proper 28 respondent in a federal habeas corpus petition is the petitioner’s ‘immediate custodian,’” or “the person having a day-to-day control over the prisoner,” typically, the custodial facility’s warden). 1 construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court must dismiss a 2 petition “[i]f it plainly appears from the petition…that the petitioner is not entitled to relief.” Habeas 3 Rule 4. Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the 4 Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading 5 is not sufficient; rather, the petition must state facts that point to a real possibility of a constitutional 6 error. Mayle v. Felix, 545 U.S. 644, 655 (2005) (“Habeas Corpus Rule 2(c) is more demanding”). 7 Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary 8 dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus 9 should not be dismissed without leave to amend unless it appears that no tenable claim for relief can 10 be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per 11 curiam). 12 Procedural and Factual Background 13 On February 27, 2003, Petitioner was convicted and sentenced in the Superior Court of 14 California County of Kern. (Doc. 1 at 1). Petitioner alleges in his petition for habeas corpus that he 15 was “forced” into a plea agreement and pled under duress for (1) assault with a deadly weapon or by 16 force likely to produce great bodily injury (Cal. Pen. Code § 245(a)(2)), and (2) possession of a 17 firearm within 10 years of conviction (Cal. Pen. Code § 12021(c)(1)). (Doc. 1 at 1-2). Petitioner did 18 not appeal his conviction or sentence and served an 8-year and 8-month term of imprisonment. Id. at 19 1-3. 20 On January 13, 2023, Petitioner filed a writ of habeas corpus in the Northern District of 21 California, challenging his 2003 Superior Court of California County of Kern conviction. (Doc. 1). 22 Petitioner was not “in custody” for the Kern County conviction when he filed this petition. The 23 Honorable District Judge William H. Orrick transferred the case to this Court on February 13, 2022. 24 (Doc. 9). On March 6, 2023, Petitioner filed a motion for summary judgment and motion for 25 “emergency adjudication and exoneration”. (Docs. 16-17) 26 Separately, on September 28, 2022, a federal grand jury sitting in the District of Utah returned 27 an indictment charging Petitioner with one count of being a felon in possession of a firearm (18 U.S.C. 28 § 922(g)(1). United States v. Sjodin, No. 4:22-cr-00105-RJS-PK-1 (D. Utah) (Doc. 1). Criminal 1 proceedings against Petitioner in the District Court of Utah are ongoing and trial is scheduled to 2 commence on April 26, 2023. See id. (Doc. 104). 3 The Petition 4 Petitioner asserts in his petition that he received ineffective assistance of counsel and was 5 denied due process in connection with the 2003 state court proceedings, and that the state court 6 wrongfully convicted and sentenced him. (Doc. 1 at 2, 5, 7). Petitioner also claims he endured cruel 7 and unusual punishment in violation of the 8th Amendment while he served his 2003 sentence. Id. at 8 8-10, 13-14. Petitioner notes he will be filing a § 1983 claim along with this petition. Id. at 12. 9 Discussion and Analysis 10 This Court lacks jurisdiction over Petitioner’s habeas petition. A federal court may entertain a 11 petition for writ of habeas corpus from a person in custody pursuant to the judgment of a state court if 12 they allege the custody is in violation of the Constitution or laws or treaties of the United States. 28 13 U.S.C. § 2254(a). The “in custody” requirement is jurisdictional and, therefore, “it is the first 14 question” this Court must consider. Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998). 15 Custody means more than the fact of physical incarceration. Bailey v. Hill, 599 F.3d 976, 978 (9th 16 Cir. 2010). A serious restraint on a petitioner’s liberty, such as probation or parole status, meets the 17 “in custody” requirement. Maleng v. Cook, 490 U.S. 488, 492 (1989). However, “once the sentence 18 imposed for a conviction has completely expired, the collateral consequences of that conviction are 19 not themselves sufficient to render an individual 'in custody' for the purposes of a habeas attack upon 20 it.” Id.; Feldman v. Perrill, 902 F.2d 1445, 1448-49 (9th Cir. 1990). 21 In this case, Petitioner challenges a 2003 state conviction and sentence. (Doc. 1 at 1). 22 Petitioner notes his sentence concluded after 8 years and 8 months. Id. Petitioner is not in custody for 23 his 2003 conviction and sentence when he filed this instant petition. Thus, the petition should be 24 dismissed for lack of jurisdiction. See, e.g., Wright v. State, 47 F.4th 954, 959 (9th Cir. 2022) (to 25 challenge a state conviction under § 2254, petitioner “must demonstrate that (1) he was ‘in custody’ at 26 the time he filed his § 2254 petition, and (2) that custody was ‘pursuant to’ the [state court] 27 judgment”); Dominguez v. Kernan, 906 F.3d 1127, 1136 (9th Cir. 2018) (“§ 2254 requires a nexus 28 1 || between ‘the judgment of a State court’ and the ‘custody’ the petitioner contends is ‘in violation of th 2 || Constitution or laws or treaties of the United States.’”’) 3 || Conclusion and Recommendation 4 Petitioner’s habeas corpus petition fails to show he is “in custody” for his 2003 state court 5 || conviction and sentence. Accordingly, the Court will recommend that the petition be dismissed with 6 || prejudice and without leave to amend. 7 The Court RECOMMENDS that: 8 1. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. $2254 (Doc. 1) be 9 DISMISSED WITH PREJUDICE and without leave to amend; 10 2. Petitioner’s motion for summary judgment (Doc. 16) and motion for “emergency 11 adjudication and exoneration” (Doc. 17) be DENIED AS MOOT; and 12 3. The Clerk of Court be directed to close this case. 13 These findings and recommendation will be submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days of 15 || being served with these findings and recommendations, Petitioner may file written objections with th 16 || Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 17 || Recommendations.” Petitioner is advised that failure to file objections within the specified time may 18 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 19 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 llr IS SO ORDERED. 21 Dated: _ March 16, 2023 | hannD Pr 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28