Todd Giffen v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION SEP 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD GIFFEN, No. 15-15125
Petitioner - Appellant, D.C. No. 1:14-cv-01280-LJO
v.
MEMORANDUM*
BARACK OBAMA, President; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Todd Giffen appeals pro se from the district court’s judgment dismissing his
28 U.S.C. § 2241 habeas corpus petition as frivolous. We have jurisdiction under
28 U.S.C. § 1291, and we vacate and remand with instructions to dismiss the
petition for lack of jurisdiction.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Giffen contends that the government has subjected him to civil rights
violations, illegal searches and surveillance, and other abuses, including irradiation
and electronic warfare. A federal court only has jurisdiction under section 2241 to
grant a writ of habeas corpus to a person “in custody” when his writ is filed. See
28 U.S.C. § 2241(c); Maleng v. Cook, 490 U.S. 488, 490-91 (1989). The state
court record shows that, at the time Giffen filed his petition, he was not “in
custody” because he was not incarcerated, placed on supervised release, or subject
to a restraint not shared by the public generally. See Jones v. Cunningham, 371
U.S. 236, 239-40, 243 (1963). Giffen’s allegations of wrongdoing are unsupported
by the record and insufficient to meet section 2241’s custody requirement.
Because Giffen was not “in custody,” the district court did not have
jurisdiction over his petition. See Maleng, 490 U.S. at 490. We therefore vacate
the judgment and remand with instructions to the district court to dismiss Giffen’s
habeas petition for lack of jurisdiction.
VACATED and REMANDED with directions.
2 15-15125