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Jurisdiction: California Central District Court
Decision Date: 8/30/2016

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Holmes v. California Holmes v. California (C.D. Cal., 2016)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        HENRY JAMES HOLMES, Petitioner,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        PEOPLE OF THE STATE OF CALIFORNIA, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. ED CV 16-01474-DOC (DFM)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        August 30, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        HENRY JAMES HOLMES, Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. ED CV 16-01474-DOC (DFM)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        August 30, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER SUMMARILY DISMISSING PETITION FOR LACK OF JURISDICTION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        BACKGROUND

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On July 7, 2016, Petitioner filed in this Court a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Dkt. 1 ("Petition"). The Petition appears to seek relief from the sex-offender registration requirement arising out of Petitioner's 2000 guilty plea to one count of assault with intent to commit rape. Id. at 2. The Petition alleges that he was released from custody on May 5, 2002. Id. Petitioner alleges that the sex-offender registration requirement is preventing him from obtaining gainful employment and Section 8 housing. Id. at 5.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This is not Petitioner's first federal habeas petition arising out of his 2000 guilty plea. In 2003, Petitioner filed a petition for writ of habeas corpus in this Court in Case No. ED CV 03-922-NM (Mc). This petition was dismissed without prejudice because Petitioner had not exhausted his state remedies. In 2004, Petitioner filed another petition for writ of habeas corpus in Case No. ED CV 04-370-DOC (Mc). This petition was denied on the merits.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISCUSSION
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This Court Lacks Jurisdiction Because the Petition Is a Successive Petition

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This Court may not entertain a second or successive habeas petition unless Petitioner obtains leave from the Ninth Circuit Court of Appeals. 28 U.S.C. § 2244(b) reads, in pertinent part, as follows:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        28 U.S.C. § 2244 (b)(1)-(3); see also Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts. In addition, Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides that if it plainly appears from the face of the petition and any exhibits thereto that the petition is not entitled to relief in the district court, the judge shall make an order for its summary dismissal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Although Petitioner did not disclose his earlier federal petitions in the Petition, it is clear from the face of the Petition that the present Petition is a successive petition attacking the same conviction and sentence in Riverside County Superior Court. There is no indication in the record that Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a second or successive petition. A district court does not have jurisdiction to consider a second or successive petition absent authorization from the Ninth Circuit. Burton v. Stewart 549 U.S. 147 152, (2007); Cooper v. Calderon 274 F. 3d 1270, 1274 (9th Cir. 2001) ("When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application. " (citation and quotation marks omitted)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, the Petition is a second or successive petition challenging the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        same conviction and sentence imposed by the same judgment of the state court as in the prior federal petitions. Accordingly, the Petition must be dismissed until such time as Petitioner obtains permission to file a successive petition.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ///

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ///

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This Court Lacks Jurisdiction Because Petition Is Not "In Custody"

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Relief under 28 U.S.C. § 2254 is available to "a person in custody pursuant to the judgment of a State court. " 28 U.S.C. § 2254(d). This Court's authority to grant habeas relief under § 2254 is limited. See Felker v. Turpin 518 U.S. 651 662 (1996). By the face of the Petition, Petitioner was released in 2002 and he does not allege that he is serving a term of probation or parole. See Petition at 2. Petitioner appears to maintain that the requirements imposed upon him by sex offender registration satisfy the custody requirement.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Petitioner is wrong. It is well-established that sex offender registration does not meet the requirements of custody for purposes of federal habeas relief; rather, it is a collateral consequence. "The sex offender registration requirement is merely a collateral consequence of conviction, and does not constitute the type of severe, immediate restraint on physical liberty necessary to render a petitioner 'in custody' for the purpose of federal habeas corpus review. " Davis v. Nassau Cnty. 524 F. Supp. 2d 182, 188 (E. D. N.Y. 2007); see also Henry v. Lungren 164 F. 3d 1240, 1242 (9th Cir. 1999) (holding that California's sex offender registration law does not meet custody requirement); Williamson v. Gregoire 151 F. 3d 1180, 1185 (9th Cir. 1998) (same holding

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        under Washington's sex offender registration law). As a collateral consequence, sex offender registration is not a restraint on Petitioner's physical liberty. "Once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual 'in custody' for the purpose of a habeas attack upon it. " Maleng v. Cook 490 U.S. 488, 492-93 (1989).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                IT THEREFORE IS ORDERED that this action be summarily dismissed for lack of subject matter jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                LET JUDGMENT BE ENTERED ACCORDINGLY.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: August 30, 2016

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        DAVID O. CARTER        United States District Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Presented by:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        /s/_________DOUGLAS F. McCORMICKUnited States Magistrate Judge

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Petitioner's has supplemented the Petition by filing a Declaration in which he asks this Court to "grant my request for a judgment of acquittal and relief from this unlawful conviction. I want to go back to work, " Dkt. 3 at 3, and a Request for Arrest in which he asks this Court to bring kidnapping charges against the Riverside County Superior Court judge and the Riverside County District Attorney's office for the events leading up to his 2000 guilty plea, Dkt. 4. These filings do not change the Court's conclusion that it lacks jurisdiction of Petitioner's habeas petition.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 If Petitioner obtains permission to file a successive petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action nor should he use this case number from this action because the instant action will be closed today. If and when Petitioner files a new petition, the Clerk will give the petition a new case number.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Petitioner's has supplemented the Petition by filing a Declaration in which he asks this Court to "grant my request for a judgment of acquittal and relief from this unlawful conviction. I want to go back to work, " Dkt. 3 at 3, and a Request for Arrest in which he asks this Court to bring kidnapping charges against the Riverside County Superior Court judge and the Riverside County District Attorney's office for the events leading up to his 2000 guilty plea, Dkt. 4. These filings do not change the Court's conclusion that it lacks jurisdiction of Petitioner's habeas petition.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 If Petitioner obtains permission to file a successive petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action nor should he use this case number from this action because the instant action will be closed today. If and when Petitioner files a new petition, the Clerk will give the petition a new case number.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
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