1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JORGE ENRIQUE HERNANDEZ, Case No. 2:20-cv-09698-SB (AFM) 12 Petitioner,

ORDER TO SHOW CAUSE WHY

13 v. PETITION SHOULD NOT BE 14 DISMISSED

ATTORNEY GENERAL OF THE

15 STATE OF CALIFORNIA, 16 Respondent. 17 18 19 Petitioneris a federal prisonerserving a sentence imposed by the United States 20 District Court for the Southern District of Florida. He is currently incarcerated in the 21 Federal Correctional Institute in Williamsburg, South Carolina. (See ECF No. 1 at 1, 22 18.) On October 20, 2020, Petitioner filed this petition for writ of habeas corpus 23 pursuant to 28 U.S.C. §2254. The petition challenges Petitioner’s attempted murder 24 conviction inLos Angeles County Superior Courtcase number BA245298. (ECF No. 25 1 at 1.) For the following reasons, it appears that the petition is subject to dismissal. 26 To obtain relief under section 2254, a petitioner must be “in custody” as a 27 result of the conviction or sentence he wishes to challenge. 28 U.S.C. § 2254(a). The 28 custody requirement is jurisdictional. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 1 2010). A petitioner is not in custody if the sentence imposed for the challenged 2 conviction has fully expired at the time the habeas corpus petition is filed. Maleng v. 3 Cook, 490 U.S. 488, 492 (1989) (per curiam). Further, once a petitioner is 4 unconditionally released, the collateral consequences of the conviction are not 5 sufficient to render the petitioner in custody for the purposes of habeas corpus. 6 Maleng, 490 U.S. at 492. This Court lacks jurisdiction over a petition challenging a 7 state conviction filed after the sentence imposed on that conviction has expired. 8 Maleng, 490 U.S. at 491-492; see Lackawanna County Dist. Attorney v. Coss, 532 9 U.S. 394, 401 (2001) (“[The petitioner] is no longer serving the sentences imposed 10 pursuant to his 1986 convictions, and therefore cannot bring a federal habeas petition 11 directed solely at those convictions.”) 12 According to the petition, Petitioner pleaded guilty to attempted murder in Los 13 Angeles Superior Court in 2004, and was sentenced to a nine-year prison term. (ECF 14 No. 1 at 1.) Pursuant to the plea agreement, the California sentence was ordered to 15 be served concurrently with a federal sentence that Petitioner already was serving. 16 (ECF No. 1 at 9-11.) Petitioner’s nine-year sentence would have expired sometime 17 in 2013.1 Thus, it appears that he is no longer in custody based on his conviction in 18 case number BA245298. Consequently, Petitioner cannot challenge that conviction 19 in a section 2254 petition. 20 Furthermore, evenwherea prior conviction is “later used to enhance a criminal 21 sentence, the defendant generally may not challenge the enhanced sentence through 22 a petition under § 2254 on the ground that the prior conviction was unconstitutionally 23 obtained.” Lackawanna, 532 U.S. at 401, 403-404. There are limited exceptions to 24 this rule including, for example, when the conviction was obtained in violation of the 25 26 1 Although Petitioner alleges that trial counsel “erroneously” advised him that the sentence would expire prior to his federal sentence (ECF No. 1 at 10), he does not explain how the advice was 27 erroneous. More importantly, Petitioner does not allege that he is currently serving, or will later serve, the California sentence. 28 1 right to the appointment of counsel under Gideon v. Wainwright, 372 U.S. 335 2 (1963). Lackawanna, 532 U.S. at 404-405. 3 Petitioner does not allege that his conviction in Case No. BA245298 was used 4 to enhance his currentfederalsentence.Moreover, Petitioner’s allegation that his trial 5 counsel provided ineffective assistance in advising him to enter a guilty plea likely 6 would not constitute a Lackawanna exception. See, e.g., Withers v. Rackley, 2019 7 WL 3720098, at *6 (C.D. Cal. June 27, 2019) (petitioner’s argument that “he 8 effectively was without counsel because his counsel allegedly stopped working for 9 him and became an ‘agent of the state,’ as evidenced by counsel’s assertedly 10 ineffective representation before and during the plea proceedings” did not meet 11 Lackawanna exception), report and recommendation adopted, 2019 WL 3718779 12 (C.D. Cal. Aug. 5, 2019); Sanchez v. Hedgpeth, 706 F. Supp. 2d 963, 991-992 (C.D. 13 Cal. 2010) (Lackawanna foreclosed claim alleging that prior conviction used to 14 enhance sentence was based on an involuntary guilty plea).2 15 In light of the foregoing, it appears the Court lacks jurisdiction over this 16 petition. 17 * * * 18 Accordingly, Petitioner is ordered to show cause on or before 19 November 27, 2020 why this action should not be dismissed without prejudice 20 for lack of jurisdiction. Specifically, Petitioner must explain how his 2004 21 conviction affects his current or future custody. 22 23 24 2Furthermore, even if Petitioner raised a challenge to his federal sentence as enhanced by the state conviction and was able to fall within a Lackawanna exception, this Court would lack jurisdiction 25 to consider it. Instead, Petitioner would have to file a section 2255 petition in the sentencing court 26 – that is, the United States District Court for the Southern District of Florida. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam); see also Quintana v. Lundgren, 368 27 F.Supp. 2d 1056, 1057–1058 (C.D. Cal. 2005) (“When a federal prisoner purports collaterally to challenge a fully expired conviction used to enhance a federal sentence currently being served, 28 courts often recharacterize the petition as a section 2255 motion attacking the current sentence.”). 1 Petitioner is cautioned that his failure to timely file a response to this 2 || Order may result in the dismissal of this petition without prejudice for lack of 3 || jurisdiction or for failure to prosecute and failure to comply with a court order. 4 |) See Fed. R. Civ. P. 41(b); C.D. Cal. Local Civil Rule 41-1. 5 IT IS SO ORDERED. 6 * 7 || DATED: 10/27/2020 (dy Wi ° ALEXANDER F.MacKINNON 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28