Opinion
No. C 00-4366 CRB (PR)
October 25, 2001
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Doc # 8)
On April 13, 1998, the Superior Court of the State of California in and for the County of Santa Clara determined that petitioner was a sexually violent predator under California's Sexually Violent Predator Act, Cal. Welf. Inst. Code § 6600 ("SVPA"), and committed him to Atascadero State Hospital for a period of two years. Petitioner unsuccessfully appealed to the California Court of Appeal and the Supreme Court of California, and, on November 21, 2000, filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Respondent moves to dismiss the petition on the ground that petitioner was not "in custody" at the time of filing and that the petition is moot. He adds that petitioner is currently in custody under a new two-year sentence imposed under SVPA on August 21, 2000 and that an appeal of that sentence is still pending in the California Court of Appeal. Petitioner claims that his custody under SVPA is "constant and continuous" and that his claims are moot.
The federal writ of habeas corpus may not be extended to a person unless he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(3), 2254(a). The Supreme Court has "interpreted this statutory language as requiring that the habeas petitioner be `in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citation omitted). The two-year sentence for petitioner's April 13, 1998 commitment expired on April 13, 2000, months before he filed the instant petition on November 21, 2000. Petitioner is no longer in custody under that sentence for the purpose of seeking federal habeas relief. See id. at 492; Brock v. Weston, 31 F.3d 1887, 889-90 (9th Cir. 1994).
However, petitioner may be able to satisfy the "in custody" requirement if his petition is construed as a collateral attack on his August 21, 2000 commitment and sentence. See Lackawanna County Dist. Attorney v. Coss, 121 S.Ct. 1567, 1573 (2001). in order to do so, he must demonstrate that his expired SVPA sentence is a "necessary predicate" to his current SVPA confinement. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1019-20 (9th Cir. 2001) (finding habeas petitioner in custody for purpose of challenging an earlier, expired rape conviction, when he is incarcerated for failing to comply with a state sex offender registration law because the earlier rape conviction is a necessary predicate to the failure to register charge); Brock, 31 F.3d at 890 (finding that habeas petitioner could challenge earlier, expired assault conviction, while involuntarily committed for treatment as a violent sexual predator because earlier conviction was necessity predicate to involuntary confinement). Petitioner makes no such showing. Regardless, the petition must be dismissed because petitioner has not yet exhausted state judicial remedies as to his August 21, 2000 commitment and sentence. See id. at 891 n. 7 (habeas petitioner challenging expired conviction or sentence used in later conviction or sentence must first exhaust state judicial remedies as to later sentence). After all, petitioner's still-pending state appeal may result in the reversal of petitioner's current SVPA commitment and sentence, and thereby moot any petition for federal habeas relief. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983).
For the foregoing reasons, respondent's motion to dismiss (doc # 8) is GRANTED.
The Clerk shall close the file.