1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KHADIJA GHAFUR, Case No. 1:20-cv-01123-NONE-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITION FOR FAILURE TO

13 v. MEET CUSTODY REQUIREMENT 14 THE PEOPLE OF THE STATE OF OBJECTIONS DUE IN THIRTY DAYS

CALIFORNIA,

15 ECF No. 1 Respondent. 16

17 18 Petitioner Khadija Ghafur, a former state prisoner without counsel, seeks a writ of habeas 19 corpus under 28 U.S.C. § 2254. ECF No. 1. This matter is before us for preliminary review 20 under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, a district court must 21 dismiss a habeas petition if it “plainly appears” that the petitioner is not entitled to relief. See 22 Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 23 1127 (9th Cir. 1998). Courts have “an active role in summarily disposing of facially defective 24 habeas petitions” under Rule 4. Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation 25 omitted). 26 27 28 1 Discussion 2 Under § 2254(a), a federal court “shall entertain an application for a writ of habeas corpus 3 in behalf of a person in custody pursuant to the judgment of a State court only on the ground that 4 he is in custody in violation of the Constitution or laws or treaties of the United States.” Because 5 custody is a statutory jurisdictional prerequisite, we may only consider a habeas petition if the 6 petitioner was in custody at the time of filing of the petition. See Maleng v. Cook, 490 U.S. 488, 7 490-91 (1989) (per curiam); Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010). “The custody 8 requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a 9 remedy for severe restraints on individual liberty.” Hensley v. Municipal Court, 411 U.S. 345, 10 351 (1973). “[T]o satisfy the custody requirement, [the] petitioner must demonstrate that he is 11 subject to a significant restraint upon his liberty ‘not shared by the public generally.’” Dow v. 12 Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir. 1993) (per curiam) (quoting Jones 13 v Cunningham, 371 U.S. 236, 240 (1963)). 14 Here, petitioner challenges the state court’s denial of her motion to vacate her criminal 15 conviction. ECF No. 1 at 8. Petitioner states that she was not incarcerated at the time of filing 16 the instant petition.1 Id. at 6. Because petitioner was not in custody at the time of filing her 17 petition, we have no jurisdiction over the petition. We recommend that the court summarily 18 dismiss the petition. If petitioner was in custody at the time of her filing, she should present proof 19 thereof in her objections to these findings and recommendations. 20 Certificate of Appealability 21 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 22 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 23 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 24 requires a District Court to issue or deny a certificate of appealability when entering a final order 25 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 26 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds 27 1 Petitioner captioned her petition as a “Petition for Writ of Habeas Corpus by Non-Incarcerated 28 Citizen” and states that she was released from custody in 2013. wOAOe UV OUUINM INE VE MMU OIC Oe eT OY VM VI

1 || without reaching the underlying constitutional claims, the court should issue a certificate of 2 || appealability “if jurists of reason would find it debatable whether the petition states a valid claim 3 || of the denial of a constitutional right and that jurists of reason would find it debatable whether the 4 | district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 || “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 6 || the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 7 || petition or that the petitioner should be allowed to proceed further.” /d. Here, reasonable jurists 8 || would not find our conclusion debatable or conclude that petitioner should proceed further. Thus, 9 | the court should decline to issue a certificate of appealability. 10 | Findings and Recommendations 11 We recommend that the petition be dismissed, ECF No. 1, and that the court decline to 12 || issue a certificate of appealability. We submit the findings and recommendations to the U.S. 13 | District Court judge who will be assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 14 | 304 of the Local Rules of Practice for the United States District Court, Eastern District of 15 | California. Within thirty days of the service of the findings and recommendations, petitioner may 16 | file written objections to the findings and recommendations with the court and serve a copy on all 17 || parties. That document must be captioned “Objections to Magistrate Judge’s Findings and 18 || Recommendations.” The assigned district judge will then review the findings and 19 || recommendations under 28 U.S.C. $ 636(b)(1)(C). 20

IT IS SO ORDERED.

22 ( Catan Dated: _ August 25, 2020 23 UNIT#D STATES MAGISTRATE JUDGE 24 25 | No. 206. 26 27 28