1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE REFUGIO CARBAJAL Case No. 2:24-cv-04444-MEMF (AS)

RAMIREZ,

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ORDER ACCEPTING REPORT AND

13 Petitioner, RECOMMENDATION OF UNITED v.

STATES MAGISTRATE JUDGE

14 GINA JOHNSON, et al., 15 16 Respondents. 17

18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 20 on file, and the Report and Recommendation of the United States Magistrate Judge 21 (“Report”). Further, the Court has engaged in a de novo review of those portions of 22 the Report to which objections have been made. 23 The Report recommends the grant of Respondents’ motion to dismiss the 24 Petition and the dismissal of this action with prejudice because Petitioner was not in 25 custody when he filed this Petition in May 2024. (ECF No. 21.) Specifically, 26 Petitioner had been removed from the United States in December 2022. (Id. at 8.) 27 Petitioner’s objections to the Report (ECF No. 22) do not warrant a change to the 28 Report’s findings or recommendations. 1 Petitioner objects that the Report overgeneralized the law as to the “in 2 custody” requirement by eliding the difference between federal immigration 3 custody and state custody. (ECF No. 22 at 7-9.) Specifically, Petitioner objects 4 that the Report relied on cases interpreting the “in custody” requirement for 28 5 U.S.C. § 2241 cases, whereas this case is a 28 U.S.C. § 2254 case. (Id.) This 6 distinction is not persuasive. Petitioner’s removal from the United States prior to 7 the filing of this Section 2254 petition meant he was not in custody. See Chavez v. 8 Superior Court of California, 194 F. Supp. 2d 1037, 1039 (C.D. Cal. 2002) 9 (summarily dismissing Section 2254 petition where Petitioner had been removed to 10 Mexico prior to filing the petition); see also Resendiz v. Kovensky, 416 F.3d 952, 11 956 (9th Cir. 2005) (immigration consequences such as deportation render a 12 petitioner not in custody for purposes of a Section 2254 petition), abrogated on 13 other ground by Padilla v. Kentucky, 559 U.S. 356, 373-75 (2010). 14 Petitioner objects that the Report erroneously found that Petitioner’s physical 15 movements were not restrained after his removal from the United States. (ECF No. 16 22 at 9-10.) Specifically, Petitioner objects that, when he filed this Petition, he was 17 subject to mandatory supervision in Mexico that required him to submit monthly 18 reports, maintain regular employment, seek approval prior to travel lasting more 19 than 72 hours, submit to searches at any time, and waive extradition. (Id.)1 20 21 1 In California, mandatory supervision is not contemplated for prisoners outside the 22 United States. “[W]hile a prisoner is outside the United States, the mandatory supervision 23 provided for in section 1170, subdivision (h) is not, as a practical matter, possible and was not contemplated by the Legislature when it adopted Realignment.” People v. Arce, 11 24 Cal. App. 5th 613, 622 (2017). Here, however, Petitioner mailed, under the terms of his mandatory supervision, monthly reports to the Ventura County Probation Agency 25 beginning in July 2022, when he was released from custody. (ECF No. 15-1 at 2.) 26 Petitioner then was removed to Mexico in December 2022, filed this Petition in May 2024, and had his mandatory supervision officially terminated in September 2024. (ECF 27 No. 12-7 at 7; ECF No. 19 at 5, 36.) Given this record, it is assumed that Petitioner was subject to all the conditions of his mandatory supervision when he filed this Petition while 28 1 These conditions of mandatory supervision do not undermine the Report, 2 which reasonably found that conditions of this type are not sufficiently burdensome 3 to rise to the level of custody. (ECF No. 21 at 7 (collecting cases including Munoz 4 v. Smith, 17 F.4th 1237, 1241-42, 1246 (9th Cir. 2021).) Although Petitioner 5 argues that his conditions of mandatory supervision were like those that were held 6 to amount to custody in Piasecki v. Court of Common Pleas, 917 F.3d 161 (3d Cir. 7 2019), the comparison is inapt. The Petitioner in Piasecki was “required to register 8 in-person with the State Police every three months for the rest of his life,” and was 9 required to “appear, in-person, at a registration site” any time he wanted to leave 10 home for more than seven days, travel internationally, change his residence, change 11 his employment, matriculate or end enrollment as a student, add or change a phone 12 number, change ownership of a car, or add or change any email address or online 13 designation, among other things. Id. at 164-65, 170. The Petitioner in Piasecki was 14 also permitted no “computer internet use.” Id. at 170. Thus, the Petitioner in 15 Piasecki “simply confronted far more severe restrictions,” and “the statute in 16 Piasecki imposed other in-person registration requirements that [Petitioner] has not 17 shown apply to him.” Deck v. California, 2023 WL 5696531, at *2 (9th Cir. 2023). 18 Petitioner relatedly objects that he was in custody because he waived his 19 right to oppose extradition to California if he had failed to comply with the 20 conditions of his mandatory supervision. (ECF No. 22 at 10-11.) What Petitioner 21 describes, however, is only the potential for modification or revocation of his 22 mandatory supervision if he had violated its conditions, which is not sufficiently 23 burdensome to amount to custody. “[T]his potentiality for future incarceration, 24 dependent entirely on whether [Petitioner] chooses to obey” the terms of his 25 mandatory supervision, does not establish custody. Williamson v. Gregoire, 151 26 F.3d 1180, 1184 (9th Cir. 1998). “We do not think that the mere potential for 27 future incarceration, without any present restraint on liberty, can satisfy the ‘in 28 custody’ requirement.” Id. 1 Petitioner objects that Respondents should be judicially estopped from 2 || enforcing the terms of mandatory supervision while taking the inconsistent position 3 || in this action that they did not impose any restrictions on Petitioner’s liberty and 4 || movements. (ECF No. 22 at 12-13.) Because the conditions of mandatory 5 || supervision did not amount to custody, Respondents are not judicially estopped 6 || from arguing that Petitioner was not in custody when he filed this Petition. 7 Petitioner objects that Respondents should not be permitted to strip away the 8 || constitutional protections of deported criminal defendants simply because 3 | immigration authorities were able to deport them before they exhausted their state 10 || remedies. (ECF No. 22 at 13-15.) Specifically, Petitioner objects that his 11 || opportunity for federal review was cut off because he was removed while he was 12 || exhausting state remedies and that he would have been unable to avoid this by 13 || filing a protective federal petition with a stay request. (/d.) To the contrary, a 14 || protective federal petition with a stay request would have been available here. 15 || Although Petitioner argues that a stay request would have been available only for a 16 || “mixed” petition with both exhausted and unexhausted claims (id. at 15), Petitioner 17 || 1s incorrect. A stay request may be filed with a protective federal petition that is 18 || fully unexhausted. See Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). 19 ORDER 20 It is ordered that (1) the Report and Recommendation is accepted and 21 || adopted; (2) Respondents’ motion to dismiss the Petition is granted (ECF No. 11); 22 | and (3) Judgment shall be entered dismissing this action with prejudice. 23 24 || DATED: August 26, 2025 . Af 26

MAME EWUSTMENSAH ERIMPONG

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