(HC) Coss v. Placer County Superior Courts, No. 2:2015cv01032 - Document 20 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/06/16 recommending that respondent's motion to dismiss 11 be granted and that this action be dismissed for lack of subject matter jurisdiction. MOTION to DISMISS 11 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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(HC) Coss v. Placer County Superior Courts Doc. 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JEFFREY N. COSS, 11 12 13 14 No. 2:15-cv-1032-TLN-EFB P Petitioner, v. FINDINGS AND RECOMMENDATIONS PLACER COUNTY SUPERIOR COURTS, Respondent. 15 16 17 Petitioner is a former county inmate without counsel seeking a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition for lack of jurisdiction 19 because petitioner is not in custody on the judgment his petition challenges. ECF No. 11. For the 20 reasons that follow, respondent’s motion must be granted and this action must be dismissed for 21 lack of jurisdiction.1 22 This court may entertain a challenge to custody imposed pursuant to the judgment of a 23 state court only on the ground that such custody violates “the Constitution or laws or treaties of 24 the United States.” 28 U.S.C. § 2254. For a federal court to have jurisdiction, petitioner must at 25 the time he files his petition be in custody pursuant to the judgment of the state court. Maleng v. 26 Cook, 490 U.S. 488, 490-91 (1989); see also Carafas v. LaValle, 391 U.S. 234, 238 (1968). 27 28 1 For this reason, the court need not address respondent’s alternate ground for dismissal based on the statute of limitations. Dockets.Justia.com 1 In this case, petitioner challenges a September 7, 2005 judgment of conviction that 2 resulted in a sentence of 285 days in county jail and three years informal probation. See Petition, 3 ECF No. 1 at 2 (referencing Placer County Superior Court Case No. 6243571); Resp’t’s Lodged 4 Doc. 1 (Opinion filed in Placer County Superior Court case number 62-043571); Resp’t’s Lodged 5 Doc. 2 at 2 (Petition for writ of habeas corpus filed in California Court of Appeal). Petitioner 6 filed the instant action nearly ten years later, on April 29, 2015. ECF No. 1. Under the terms of 7 petitioner’s sentence, his custody would have ended long before he filed his federal petition. 8 Thus, petitioner cannot challenge the 2005 judgment and sentence because he is no longer in 9 custody as a result of that judgment. See Woodall v. Beauchamp, 450 F. App’x 655, 657 (9th Cir. 10 2011) (habeas petitioner must be in custody as a result of the challenged conviction, not on 11 unrelated charges). Because petitioner was not in custody pursuant to the judgment of conviction 12 when he filed his petition, this action must be dismissed for lack of subject matter jurisdiction. 13 14 15 Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss (ECF No. 11) be granted and that this action be dismissed for lack of subject matter jurisdiction. These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 20 within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 22 his objections petitioner may address whether a certificate of appealability should issue in the 23 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 24 § 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 25 final order adverse to the applicant). 26 Dated: January 6, 2016. 27 28 2

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