Matthews v. Escuro
- Proceeding
- district
- Area
- civil
- Panel
- Myron James Lorenz (author)
Analysis
The court considered a motion to withdraw as counsel and an Order to Show Cause regarding the jurisdictional 'in custody' requirement for a habeas petition. The court denied the motion to withdraw without prejudice and dismissed the petition without prejudice because the petitioner was not in custody.
| What the court decided | The model |
|---|---|
Motion to withdraw as counsel denied without prejudice“The Court therefore DENIES it without prejudice.” | agree with court The court correctly applied Local Rule 83.3, which requires service of the motion on the client. Since the record did not show service, denying the motion without prejudice is the standard procedural response to allow counsel to cure the defect. |
Petition dismissed without prejudice“For the above reasons, the Court DISMISSES the petition WITHOUT PREJUDICE.” | agree with court The court correctly identified that the 'in custody' requirement is jurisdictional under 28 U.S.C. § 2254(a). The record indicates the petitioner was no longer on mandatory supervision and did not contend he was in custody when the petition was filed. Dismissal without prejudice is appropriate for lack of subject matter jurisdiction. |
The order itself: sound — The order correctly applies the jurisdictional 'in custody' requirement to the facts presented. It relies on binding Supreme Court and Ninth Circuit precedent to support the dismissal. The reasoning is concise but sufficient for a procedural dismissal based on lack of jurisdiction.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MATTHEWS, Case No.: 3:21-cv-1436-L-RBB 12 Petitioner, ORDER ON MOTION TO 13 v. WITHDRAW AS COUNSEL AND OSC 14 ESCURO, et al., 15 Respondents. 16 17 Pending before the Court is a motion to withdraw as Petitioner’s counsel. (ECF 9). 18 The record does not show counsel served Petitioner with the motion. Id. The Court 19 therefore DENIES it without prejudice. See Civ. L. R. 83.3. 20 There is an outstanding Order to Show Cause. (ECF 2). Petitioner’s counsel was 21 ordered to indicate whether Petitioner authorized them to file the petition. Id.; (ECF 1) 22 (“Petitioner has given no indication to undersigned counsel as to whether he wishes that 23 such a petition be filed.”) Petitioner, after several months, failed to show he authorized 24 this action. (ECFs 2, 4, 6, and 8); (see Docket). 25 The Court also ordered Petitioner to show why it should not dismiss the petition 26 because the petition did not indicate they were in custody. (ECF 2). The “in custody” 27 requirement is jurisdictional, and “therefore it is the first question [the Court] must 28 consider.” Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (internal quotation marks and 1 || citation omitted). There is nothing to indicate the custody requirement was met. Per 2 || Petitioner’s counsel, “there is no non-frivolous argument to make regarding [Petitioner’s] 3 || custody status, as [Petitioner] is currently no longer on mandatory supervision.” (ECF 9). 4 || And Petitioner does not contend he was on mandatory supervision when the petition was 5 || filed. 6 For the above reasons, the Court DISMISSES the petition WITHOUT 7 || PREJUDICE. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (it is a jurisdictional 8 requirement that “the habeas petitioner be ‘in custody’ under the conviction or sentence 9 || under attack at the time his petition is filed.”); Bailey, 599 F.3d at 979-81 (fines, fees, and 10 restitution are insufficient to meet section 2254(a)’s custody requirement); see 28 U.S.C. 11 |} § 2242; Rule 2(c)(5), Rules Governing Section 2254 Cases; Hendricks v. Vasquez, 908 12 || F.2d 490, 491 (9th Cir. 1990) (court may dismiss an unsigned or unverified petition); see 13 || Lucky v. Calderon, 86 F.3d 923, 925 (9th Cir. 1996) (petitioner’s “repeated failures to 14 ||respond to his attorney in any way, combined with his lack of verification and signature, 15 ||rebutted the presumption that he consented to the petition.”) 16 IT IS SO ORDERED. 17 || Dated: November 30, 2021 fee ep 19 H . James Lorenz United States District Judge 20 21 22 23 24 25 26 27 28