Gary David Gortmaker, Petitioner-appellant, v. State of Oregon, Respondent-appellee, 119 F.3d 5 (9th Cir. 1997)

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US Court of Appeals for the Ninth Circuit - 119 F.3d 5 (9th Cir. 1997) Submitted July 14, 1997**July 18, 1997

Appeal from the United States District Court for the District of Oregon, D.C. No. CV-94-01153-JO; Michael R. Hogan, District Judge, Presiding.

Before: HUG, Chief Judge, KOZINSKI and LEAVY, Circuit Judges.


David Gary Gortmaker, former Oregon state prisoner, appeals pro se the district court's dismissal for lack of subject matter jurisdiction of his 28 U.S.C. § 2254 habeas petition challenging his convictions for theft and official misconduct.

We review de novo whether subject matter jurisdiction exists, see Toma v. Turnage, 825 F.2d 1400, 1402 (9th Cir. 1987), and for abuse of discretion a district court's decision denying a motion for an evidentiary hearing, see Villafuerte v. Stewart, 111 F.3d 616, 633 (9th Cir. 1997). We affirm.

The district court did not err by determining that it lacked jurisdiction over Gortmaker's habeas petition because Gortmaker was not in custody when he filed the petition. See 28 U.S.C. §§ 2241(c) and 2254(a); Maleng v. Cook, 490 U.S. 488, 492 (1989) (consequences of expired conviction do not render person "in custody" for purposes of attacking the conviction).

The district court did not abuse its discretion by denying Gortmaker's motion for an evidentiary hearing because the record conclusively showed that Gortmaker was not entitled to habeas relief. See Anderson v. United States, 898 F.2d 751, 753 (9th Cir. 1990) (per curiam).



The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, we deny Gortmaker's request for oral argument


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


We deny Gortmaker's motion to strike all or part of the answering brief, and we grant Steven T. Wax's motion to withdraw