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Smith v. Cortez-Masto

United States District Court, D. Nevada

August 1, 2014

MICHAEL J. SMITH, Petitioner,
v.
CATHERINE CORTEZ-MASTO, Respondent.

ORDER

JAMES C. MAHAN, District Judge.

This habeas action comes before the court on: (a) respondents' motion (#9) to substitute party; (b) petitioner's motion (#10) to file an amended petition with additional pages; and (c) respondents' motion (#12) for leave to file a response late, as well as for consideration of the motion to dismiss tendered therewith, to which petitioner already has responded.

Pending Procedural Motions

As an initial matter, the court notes that respondents' counsel has submitted a notice of substitution in a manner where the paper was filed as a motion (#9) to substitute. The filing of a notice instead as a motion that must be cleared off the electronic docketing system unnecessarily diverts the judges and staff of this court from other submissions. It is counsel's responsibility to instruct his staff in the proper manner of submitting filings, including selecting a proper description from the "drop down menu box" on CM/ECF for a particular filing. The court trusts that counsel will ensure that such a filing of a notice instead as a motion will not be repeated. The court will direct the clerk to clear the current filing as a pending motion.

Petitioner, in turn, is reminded that he must attach a certificate of service confirming that he has mailed a service copy of all papers submitted to the court to the individual attorney named in the most recent notice of representation or substitution filed by respondents' counsel. Simply putting "cc: Catherine Cortez Masto, Attorney General, State of Nevada" at the bottom of a paper does not suffice. If petitioner does not comply with the court's orders in this regard, it will strike the noncompliant filings.

The court will grant petitioner's motion (#10) to file an amended petition with additional pages. The filing of the pleading does not necessarily reflect that the pleading is free of deficiencies. The court does not reach any further issues with regard to the claims and pleadings presented following upon its disposition herein, discussed infra.

On respondents' motion (#12) for leave to file a response late, it appears that counsel prepared and served the motion to dismiss - to which petitioner has responded - but the motion to dismiss was not actually filed into the record due to clerical error by counsel's staff. The court will grant the motion for leave to actually file the motion to dismiss in the suit record. Given that petitioner already has filed his opposition to the motion to dismiss, the court will proceed to disposition of the motion on the papers on file.

Motion to Dismiss

Respondents move to dismiss the petition, as amended, for lack of jurisdiction because petitioner's sentence fully expired prior to the filing of the original federal petition, such that he was not in custody at the time that the petition was filed. The motion follows upon the prior scheduling order noting the possible presence of the jurisdictional issue.

Petitioner's sentence fully expired on July 4, 2012, and the federal petition was not filed until May 15, 2014.[1]

The federal habeas statute gives district courts jurisdiction to entertain petitions challenging a judgment of conviction only for persons who are "in custody" under the conviction at the time that the petition is filed. See, e.g., Maleng v. Cook, 490 U.S. 488, 490-91 (1989). A habeas petitioner no longer is "in custody" under a judgment of conviction for purposes of federal habeas jurisdiction where the sentence imposed by the judgment has fully expired prior to the filing of the federal petition. See, e.g., Maleng, 490 U.S. at 492; De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990).

Petitioner's sentence on the challenged conviction expired nearly two years prior to the filing of the original federal petition, and the court therefore does not have jurisdiction over the petition.

In his opposition, petitioner does not dispute that his sentence fully expired prior to the filing of the federal petition. Petitioner's arguments in the response do not establish that the court nonetheless has jurisdiction.

First, petitioner contends that: (a) he filed a state post-conviction petition on January 6, 2011; (b) he filed the state petition while he was out of physical custody but while on parole; (c) under Jones v. Cunningham, 371 U.S. 236 (1963), an individual on parole is in custody; (d) he could not file a federal petition until after all state court remedies had been exhausted; and (e) he filed his federal petition within one ...


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