Hector Clyde Wood, Petitioner-appellant, v. Fred Pearce, Director, Oregon Department of Corrections,respondent-appellee, 24 F.3d 252 (9th Cir. 1994)

MEMORANDUM^** 

Hector C. Wood appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. The district court dismissed the action for lack of jurisdiction on the ground that Wood was not in custody when he filed the habeas petition. We affirm.

It is a jurisdictional requirement that, at the time a habeas petition is filed, "the habeas petitioner be 'in custody' under the conviction or sentence under attack [.]" Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing 28 U.S.C. §§ 2241(c) (3) & 2254(a); Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). A habeas petitioner who is a fugitive from the sentence he seeks to challenge does not satisfy the "in custody" requirement. Gonzales v. Stover, 575 F.2d 827, 827-28 (10th Cir. 1978) (citing Molinaro v. New Jersey, 396 U.S. 365 (1970)); cf. Conforte v. Commissioner, 692 F.2d 587, 589 (9th Cir. 1982) (a litigant cannot "invoke the processes of the law while [simultaneously] flouting them"; accordingly, a fugitive from justice in a criminal case is not entitled to prosecute an appeal in a civil case).

Here, the record reveals that in December 1992, Wood left Oregon and moved to California, thereby violating the conditions of his parole. On December 16, 1992, the Oregon Board of Parole issued a warrant for Wood's arrest. On March 1, 1993, while he remained a fugitive, Wood filed a habeas petition challenging his sentence. Because Wood was a fugitive when he filed the petition, he was not "in custody" within the meaning of the federal habeas statutes. See 28 U.S.C. §§ 2241(c) (3) & 2254(a); Gonzales, 575 F.2d at 827-28. Accordingly, the district court properly dismissed Wood's habeas petition for lack of jurisdiction. See Maleng, 490 U.S. at 490-91.

AFFIRMED.