Case 2:21-cv-05717-TJH Document 20 Filed 09/30/22 Page 1 of 3 Page ID #:93

1 2 3 4 5 6 7 8 United States District Court 9 Central District of California 10 Western Division 11 12 UNITED STATES OF AMERICA, CV 21-05717 TJH

13 Plaintiff, CR 87-00886 TJH 14 v. Order 15 MICHAEL O. DEVAUGHN, 16 Defendant. 17 18 The Court has considered Defendant Michael O. DeVaughn’s motion to vacate, 19 set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, and the Government’s 20 motion to dismiss, together with the moving and opposing papers. 21 On February 22, 1989, following a bench trial, the Court convicted DeVaughn 22 on one count of conspiracy to possess with intent to distribute cocaine, in violation of 23 21 U.S.C. §§ 846 and 841(a)(1), and two counts of possession with intent to distribute 24 cocaine, in violation of 21 U.S.C. § 841(a)(1). DeVaughn was sentenced on March 25 5, 1990. For Count One, the conspiracy count, he was sentenced to five years of 26 imprisonment followed by federal parole. For Count Two, the first possession count, 27 he was sentenced to three years of imprisonment followed by six years of supervised 28 release. For Count Three, the second possession count, he was sentenced to 20 years Order Page 1 of 3 Case 2:21-cv-05717-TJH Document 20 Filed 09/30/22 Page 2 of 3 Page ID #:94

1 of imprisonment followed by three years of supervised release. The sentences were to 2 run concurrently with each other. 3 On September 27, 2004, DeVaughn was released from custody and began his 4 terms of parole and supervised release. 5 On March 31, 2005, DeVaughn was arrested by Los Angeles County Sheriff’s 6 deputies for receiving stolen property, but failed to notify his federal probation officer. 7 On May 17, 2005, DeVaughn tested positive for the presence of marijuana. 8 On November 8, 2006, DeVaughn was arrested by local police in Riverside 9 County for, inter alia, fraud and money laundering. 10 In December, 2006, DeVaughn’s federal probation officer filed a petition for the 11 revocation of his supervised released based on several alleged violations. In January, 12 2007, the Court issued a bench warrant for DeVaughn, which resulted in the placement 13 of a detainer while he was in state custody. 14 In January, 2011, following a Superior Court jury trial, DeVaughn was sentenced 15 to just under 32 years of imprisonment. 16 On July 4, 2020, DeVaughn was released early from his state sentence and, then, 17 transferred to federal custody. 18 On August 17, 2020, DeVaughn admitted to Allegation 3 of the probation 19 revocation petition, which related to the use of marijuana. After the Court accepted 20 DeVaughn’s admission, it granted the Government’s motion to dismiss the remaining 21 allegations. The Court, then, sentenced DeVaughn to time served and reinstated 22 supervised release for a period of six months. On January 12, 2021, DeVaughn was 23 released from federal custody on a United States Parol Commission warrant. 24 DeVaughn, then started his six months of supervised release. His supervised release 25 term expired on July 11, 2021. 26 On June 29, 2021, the Ninth Circuit Court of Appeals, inter alia, affirmed the 27 revocation of DeVaughn’s supervised release and the sentence. 28 On July 12, 2021, the day after his supervised release expired, DeVaughn filed Order Page 2 of 3 Case 2:21-cv-05717-TJH Document 20 Filed 09/30/22 Page3of3 Page ID#:95

1 || the instant § 2255 motion asserting the same grounds that he had raised in his most 2 || recent appeal to the Ninth Circuit. 3 DeVaughn, now, moves to vacate, set aside, or correct his sentence pursuant to§ 4 || 2255, while the Government, now, moves to dismiss DeVaughn’s motion for lack of 5 || jurisdiction. 6 A defendant can file a § 2255 motion only if he is “in custody under sentence of 7 || acourt.” 28 U.S.C. § 2255(a). Because the “in custody” requirement is jurisdictional, 8 || the Court must dismiss a § 2255 motion if a defendant filed that motion after his 9 || sentence ended. See, e.g., United States v. Reves, 774 F.3d 562, 565 (9th Cir. 2014). 10 For purposes of § 2255, a defendant is “in custody” while he is on supervised 11 | release. Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002). Further, 12 || “[a] habeas petitioner [is not] “in custody’ under a conviction after the sentence 13 || imposed for it has fully expired.” Maleng v. Cook, 490 U.S. 488, 492 (1989). Here, 14 || DeVaughn’s last day “in custody” was July 11, 2021 - the day his supervised release 15 || term expired. DeVaughn filed this § 2255 motion the following day, July 12, 2021. 16 || Consequently, he was not “in custody” when he filed this § 2255 motion. 17 18 Accordingly, 19 20 It is Oryered that DeVaughn’s § 2255 motion be, and hereby is, Dismissed 21 || for lack of jurisdiction. 22 23 || Date: September 30, 2022 ae Hora 24 f 25 & py. Hatter, Fl. 96 Senior Cnited States District Jusge 27 28

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