Harvey v. Ford ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DANIEL THOMAS HARVEY, Case No. 3:19-cv-00312-MMD-CBC 7 Petitioner, v. ORDER 8 9 AARON D. FORD, et. al, 10 Respondents. 11 12 Before the Court is Petitioner Harvey’s amended petition for writ of habeas corpus. 13 (ECF No. 4.) According to his petition, Harvey seeks relief from a Nevada conviction 14 entered in 2004 on one count each of battery with a deadly weapon and assault with a 15 deadly weapon. (Id. at 4, 83.) The state court sentenced Harvey to a term of 12 to 30 16 months in the Nevada State Prison for the assault and a consecutive term of 24 to 60 17 months for the battery. (Id.) The sentence for the battery was suspended with Harvey to 18 be placed on probation for a period not to exceed five years. (Id.) 19 This Court’s habeas corpus jurisdiction depends upon Harvey being “in custody” 20 as a result of the conviction and sentence he seeks to challenge. See 28 U.S.C. § 21 2254(a); Maleng v. Cook, 490 U.S. 488 (1989). Custody is tested at the time of filing the 22 petition; that is, a person must be in custody, under the conviction or sentence attacked, 23 at the time he files the petition. See Maleng, 490 U.S. at 490-92. A person whose 24 sentence has fully expired at the time his petition is filed can not satisfy the custody 25 requirement. See id. 26 /// 27 1 Harvey initiated this proceeding in June 2019. (ECF No. 1.) His amended petition 2 for habeas corpus relief indicates that he “expired his probation in the State of Nevada” 3 in 2009. (ECF No. 4 at 2.) The Court also takes judicial notice of online records for the 4 Nevada Department of Corrections (https://ofdsearch.doc.nv.gov/form.php) which 5 indicate that Harvey’s assault sentence expired in early 2006. That is consistent with final 6 sentence expiration date of 2009 on the battery count. Accordingly, the conviction and 7 resulting sentence Harvey seeks to challenge appear to have expired approximately ten 8 years ago and Harvey’s petition contains no credible allegations to the contrary. 9 Also, while collateral consequences might prevent a petition filed while “in custody” 10 from later becoming moot (see, e.g., Zal v. Steppe, 968 F.2d 924, 926 (9th Cir. 1992)), 11 they are not capable of satisfying the “in custody” requirement for a petitioner whose 12 sentence has been completely discharged prior to the filing of the petition. See Maleng, 13 490 U.S. at 492. Consequently, this Court lacks jurisdiction over Harvey’s application for 14 habeas relief. 15 It is therefore ordered that the amended petition for writ of habeas corpus (ECF 16 No. 4) is dismissed for lack of subject matter jurisdiction. The Clerk of Court is directed to 17 enter judgment accordingly. 18 It is further ordered that a certificate of appealability is denied as reasonable jurists 19 would not find this Court’s decision debatable or wrong. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 It is further ordered that the Clerk of Court is directed to add Aaron D. Ford, 2 Attorney General of the State of Nevada, as counsel for Respondents and electronically 3 serve upon Respondents a copy of the amended petition for writ of habeas corpus (ECF 4 No. 4) and a copy of this order. No response or appearance by the Respondents is 5 necessary. 6 DATED THIS 5th day of August 2019. 7 8 MIRANDA M. DU 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27