Davis v. Bonta ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GAVIN B. DAVIS, Case No.: 21-CV-2042 JLS (BGS) 12 Petitioner, ORDER DISMISSING PETITION, 13 v. DENYING PETITIONER’S MOTIONS AS MOOT AND 14 ROB BONTA, California Attorney DECLINING TO ISSUE A General, 15 CERTIFICATE OF Respondent. APPEALABILITY 16 17 18 Petitioner, proceeding pro se, has submitted a Petition for a Writ of Habeas Corpus 19 pursuant to 28 U.S.C. § 2254 and has paid the $5.00 filing fee. (ECF No. 1.) He has also 20 filed a Motion to appoint counsel (ECF No. 2), a Motion to compel (ECF No. 4), and a 21 Motion for an evidentiary hearing (ECF No. 5). 22 Petitioner indicates he is challenging a conviction from the San Diego County 23 Superior Court for which, on June 7, 2018, he was sentenced to time served and three years 24 probation, and states that his sentence completely expired on June 6, 2021. (ECF No. 1 at 25 1-2.) Thus, Petitioner was not in actual or constructive custody at the time the Petition was 26 filed on December 7, 2021. 27 “Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C. 28 § 2254(a), is limited to those persons ‘in custody pursuant to the judgment of a State.’” 1 || Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994), quoting 28 U.S.C. § 2254(a) (“The 2 ||Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an 3 || application for a writ of habeas corpus in behalf of a person in custody pursuant to the 4 ||judgment of a State court only on the ground that he is in custody in violation of the 5 || Constitution or laws or treaties of the United States.”). It is a jurisdictional requirement 6 || that, at the time a habeas petition is filed, “the habeas petitioner be ‘in custody’ under the 7 || conviction or sentence under attack.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989), citing 8 U.S.C. § 2254(a); see Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (“The federal 9 || habeas corpus statute requires that the applicant must be ‘in custody’ when the application 10 || for habeas corpus is filed.”); Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010) (“The 11 || petitioner must be in custody at the time that the petition is filed.”). “[OJnce the sentence 12 ||imposed for a conviction has completely expired, the collateral consequences of that 13 ||conviction are not themselves sufficient to render an individual ‘in custody’ for the 14 || purposes of a habeas attack upon it.” Maleng, 490 U.S. at 492. 15 Here, Petitioner indicates he is no longer in custody under the state court conviction 16 || he is challenging in his Petition because his sentence has completely expired. Accordingly, 17 || the Court lacks jurisdiction over the Petition, which is DISMISSED for lack of jurisdiction. 18 || Petitioner’s Motions (ECF Nos. 2, 4, 5) are DENIED as moot. The Court DECLINES to 19 |lissue a Certificate of Appealability because jurists of reason would not find the 20 || jurisdictional ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding 21 || when a habeas petition is resolved on procedural grounds without reaching the merits of 22 ||the claims, a certificate of appealability should issue when “jurists of reason would find it 23 || debatable whether the district court was correct in its procedural ruling.”’). 24 IT IS SO ORDERED. 25 ||Dated: December 9, 2021 tt 26 pee Janis L. Sammartino United States District Judge 28