1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 GREGORY A. AUSTIN, Case No. 20–cv–00900–CRB

9 Plaintiff,

ORDER DISMISSING PETITION FOR

10 v. WRIT OF HABEAS CORPUS

11 STATE OF CALIFORNIA, SAN FRANCISCO SUPERIOR COURT, et al., 12 Defendants. 13

14 Petitioner Gregory Austin seeks a writ of habeas corpus under 28 U.S.C. § 2254, 15 challenging the validity of a domestic violence protective order which prevents him from engaging 16 in certain activities, including communicating with or being within 100 yards of his former spouse 17 and son (“Protected Parties”). 28 U.S.C. § 2254 Rule 4 requires district courts to conduct a 18 preliminary review of a habeas corpus petition and dismiss it if “it plainly appears from the 19 petition and any attached exhibits that the petitioner is not entitled to relief in the district 20 court . . . .” Such dismissal is warranted if it is “patently apparent” that the court does not have 21 subject matter jurisdiction. Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003). For a district court 22 to have subject-matter jurisdiction over a habeas petition, the petitioner must be “in custody 23 pursuant to the judgment of a State court.” See 28 U.S.C. § 2254(a). Because Austin’s petition 24 does not allege his physical liberty is sufficiently constrained to render him in custody, this Court 25 does not have subject-matter jurisdiction and therefore must summarily dismiss the Complaint 26 pursuant to 28 U.S.C. § 2254 Rule 4. 27 1 I. BACKGROUND 2 On February 3, 2020, Austin filed this pro se action for a federal writ of habeas corpus. 3 Compl. (dkt. 1). He seeks to end his restraint under a protective order issued by the Superior 4 Court of California in 2013 during his divorce and extended in 2016 for a further five years. Id. at 5 1, 3. Under the order, Austin is prevented from communicating with or being within 100 yards of 6 the Protected Parties, going within 100 yards of his previous residence, and possessing firearms or 7 firearm accessories. Id. at 6. 8

II. LEGAL STANDARD

9 A court may entertain a petition for a writ of habeas corpus only “in behalf of a person in 10 custody pursuant to the judgment of a State court only on the ground that he is in custody in 11 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). If a 12 petitioner is not “in custody” within the meaning of the statute, the court does not have subject- 13 matter jurisdiction to consider the petition. See Maleng v. Cook, 490 U.S. 488, 490 (1989). 14 A district court considering an application for a writ of habeas corpus shall “award the writ 15 or issue an order directing the respondent to show cause why the writ should not be granted, 16 unless it appears from the application that the applicant or person detained is not entitled thereto.” 17 28 U.S.C. § 2243. A court must conduct a preliminary review of a habeas corpus petition and 18 dismiss it if “it plainly appears from the petition and any attached exhibits that the petitioner is not 19 entitled to relief in the district court . . . .” 28 U.S.C. § 2254 Rule 4; see also McFarland v. Scott, 20 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss summarily any habeas 21 petition that appears legally insufficient on its face . . . .”). A court can exercise this power “when 22 it is patently apparent that the court lacks jurisdiction to grant the relief demanded.” Cephas, 328 23 F.3d at 103. 24

III. DISCUSSION

25 This Order first considers whether Austin is in custody within the meaning of 28 U.S.C. 26 § 2254 and concludes that he is not. Therefore, this Court must dismiss the Complaint pursuant to 27 § 2254 Rule 4. It then analyzes whether, even if Austin were in custody, the Complaint would be 1 barred by the applicable statute of limitations and concludes that it would be. However, because 2 Austin could plead facts that would cure these deficiencies if given leave to amend, the Complaint 3 is dismissed without prejudice. 4 A. Federal Habeas Corpus Custody Requirement 5 “The custody requirement of the habeas corpus statute is designed to preserve the writ of 6 habeas corpus as a remedy for severe restraints on individual liberty” and limit it to “cases of 7 special urgency[.]” Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara 8 County, 411 U.S. 345, 351 (1973). While the habeas petitioner must be in custody at the time of 9 petition, the meaning of “in custody” under § 2254 is not limited to physical confinement. 10 Maleng, 490 U.S. at 490–91. A petitioner on parole, for example, is still sufficiently in custody. 11 Id. at 491. Additionally, the restraint need not result from a criminal conviction; civil court orders 12 can render an individual in custody. Duncan v. Walker, 533 U.S. 167, 176 (2001). The key 13 question is “whether the legal disability in question somehow limits the putative habeas 14 petitioner’s movement.” Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998). 15 Austin argues that his restraint under the protection order offends the First through Tenth 16 and Fourteenth Amendments. See Compl. at 4, 6–7. Most of these allegations are irrelevant to 17 determining whether Austin is in custody. For example, firearm restrictions do temporarily 18 prohibit Austin from exercising his Second Amendment rights, but they do not place him in 19 custody under the federal habeas statutes because they are “neither severe nor immediate” 20 restraints on his liberty. See Harvey v. South Dakota, 526 F.2d 840, 841 (8th Cir. 1975) (quoting 21 Hensley, 411 U.S. at 351); see also Rouse v. Chen, No. C 02–01272 VRW(PR), 2002 WL 826835, 22 at *1 (N.D. Cal. Apr. 19, 2002) (holding that firearm restrictions imposed by a restraining order 23 were not significant restraints on petitioner’s physical liberty). Such “collateral consequences” of 24 a court order “are not themselves sufficient to render an individual in custody for the purposes of a 25 habeas attack upon it.” See Maleng, 490 U.S. at 491–92 (identifying the specific consequences of 26 a petitioner’s “inability to vote, engage in certain businesses, hold public office, or serve as a 27 juror” as insufficient); see also Williamson, 151 F.3d at 1183–84 (holding that sex offender 1 registration was also insufficient because it did not impose “a significant restraint on [petitioner’s] 2 physical liberty.”). 3 The relevant restrictions here are those that restrain Austin’s physical liberty; namely, the 4 prohibitions on going within 100 yards of the Protected Parties or his previous residence. See 5 Compl. at 6. Three other courts in this District have held that similar protective orders do not 6 impose the magnitude of restraint necessary for habeas jurisdiction. See Rouse v. Plummer, No. C 7 04–0276 JF (PR), 2006 WL 3507945, at *5 (N.D. Cal. Dec. 1, 2006); Chen, 2002 WL 826835, at 8 *1; Jones v. McKibben, No. C 93–4536 FMS, 1994 WL 62105, at *1 (N.D. Cal. Feb. 8, 1994). At 9 least four other courts have agreed. See Westhoff v. Moran, No. 09–501, 2009 WL 1362630, at 10 *2 (E.D. Pa. Mar. 30, 2009); Contino v. O’Mara, No. 09–cv–062–SM, 2009 WL 1035275, at *4 11 (D.N.H. Apr. 16, 2009); McCreary v. Birkett, No. 2:06–CV–11195, 2006 WL 3257223, at *3 12 (E.D. Mich. Nov. 9, 2006); Strout v. State of Maine, No. Civ. 04–40–P–S, 2004 WL 1571768, at 13 *3 (D. Me. July 13, 2004). 14 Contino is illustrative for this case. See 2009 WL 1035275, at *4. There, the court found 15 that although the petitioner was “under certain restrictions on his freedom of movement not 16 experienced by the public generally, imposed by a civil restraining order,” the petitioner’s liberty 17 was not sufficiently restrained to render him in custody. Id. The terms of the Contino restraining 18 order were substantially similar to Austin’s; they included prohibitions on: 19 (a) Contact with the protected party unless specifically authorized by the court, 20 (b) Going within 100 yards of the protected party, 21 (c) Possession of a firearm or ammunition, and 22 (d) Using alcohol, narcotic drugs, or other controlled substances. 23 See Contino Compl. Attach. 4 at 6–8, Contino v. O’Mara, No. 09–cv–062–SM, 2009 WL 1035275 24 (D.N.H. Apr. 16, 2009). The Court agrees with Contino’s conclusion that these restrictions do not 25 represent a significant enough constraint on Austin’s freedom of movement to establish habeas 26 jurisdiction. 27 Because Austin has not shown that the protective order sufficiently constrains his physical 1 § 2254(a). See Williamson, 151 F.3d at 1183–84. Therefore, this Court does not have subject- 2 matter jurisdiction to consider the petition and must dismiss the Complaint pursuant to 3 28 U.S.C. § 2254 Rule 4. 4 B. Federal Habeas Corpus Statute of Limitations 5 Even assuming arguendo that Austin is in custody, “[a] 1-year period of limitation shall 6 apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment 7 of a State court.” 28 U.S.C. § 2244(d)(1). This limitations period begins to run from the latest of 8 four dates: 9 (A) the date on which the judgment became final by the conclusion 10 of direct review or the expiration of the time for seeking such review; (B) the date on which an impediment to filing an application 11 created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing 12 by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right 13 has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date 14 on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 15 Id. § 2244(d)(1)(A)–(D). 16 Austin asserts that the Superior Court extended the protection order on September 20, 17 2016. Compl. at 1. He does not assert that he sought any direct review of the order. The time for 18 seeking such review is sixty days from service if the restrained party is properly served with the 19 order, or 180 days from entry of judgment without such service. Cal. R. Ct. 8.104(a)(1). Austin’s 20 filing of this Complaint on February 3, 2020 is well beyond one year from either window. 21 Austin does not assert the State impeded him from filing this petition. Additionally, the 22 rights Austin asserts the protection order infringes are those guaranteed by the First through Tenth 23 and Fourteenth Amendments. See Compl. at 4, 6–7. These are manifestly not “newly recognized” 24 rights under 28 U.S.C. § 2244(d)(1)(C). 25 Austin also does not assert that the factual predicates for any of his allegations only 26 became known to him in the year prior to February 3, 2020, as 28 U.S.C. § 2244(d)(1)(D) would 27 require. Importantly, accrual under this Section begins “when the [petitioner] knows (or through 1 due diligence could discover) the important facts, not when the [petitioner] recognizes their legal 2 significance.” Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001). Austin does not appear 3 to assert any facts he would not have had actual knowledge of by September 20, 2016 at the latest, 4 which is the date the Superior Court extended the protection order. See Compl. at 1. 5 Because the starting date for the period of limitations is more than one year prior to the 6 date Austin filed his Complaint based on the facts pled, this petition would be barred by 28 U.S.C. 7 § 2244 even if Austin were in custody. 8 C. Leave to Amend 9 “[A] court should freely give leave [to amend a pleading] when justice so requires.” See 10 Fed. R. Civ. P. 15(a)(2). Nevertheless, a court has discretion to deny leave to amend due to 11 “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 12 deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue 13 of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. v. BMG Music 14 Pub., 512 F.3d 522, 532 (9th Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A 15 court should deny leave to amend as futile “only if no set of facts can be proved . . . that would 16 constitute a valid and sufficient claim . . . .” Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 17 1134 (9th Cir. 2018) (citation omitted). 18 It is not impossible that Austin could plead facts demonstrating he is in custody for 19 purposes of habeas jurisdiction. For example, the Ninth Circuit has held that a court order 20 requiring an individual’s physical presence in a specific location can satisfy the federal habeas 21 custody requirement. Dow v. Circuit Court of First Circuit, 995 F.2d 922, 922–23 (9th Cir. 1993) 22 (holding that an individual was in custody based on a sentence that required attendance at an 23 alcohol rehabilitation program for fourteen hours). Austin has not pled that the protective order 24 requires his ongoing attendance in any similar program, but if it does, that requirement might 25 suffice to render him in custody pursuant to Dow.1 See id. 26

27 1 However, any past requirement that Austin appear in a specific location, now expired or 1 Sumilarly, it is theoretically possible that a State impediment to Austin filing his Complaint 2 || was only removed, or that he exercised due diligence but only discovered the factual predicate of 3 one or more claims, within the preceding year. Either circumstance could render his Complaint 4 || timely under 28 U.S.C. § 2244. 5 Because a possible set of facts exists which could both render Austin currently in custody 6 || and his Complaint timely, leave to amend is GRANTED. 7 || IV. CONCLUSION 8 For the foregoing reasons, the Complaint is dismissed with leave to amend within 45 days. 9 The Court recommends that Austin consult with the Federal Pro Bono Project’s Legal Help 10 || Center in either of the Oakland or San Francisco federal courthouses for assistance. The San 11 Francisco Legal Help Center office is located in Room 2796 on the 15th floor at 450 Golden Gate 12 Avenue, San Francisco, California. The Oakland office is located in Room 470-S on the 4th floor 13 at 1301 Clay Street, Oakland, California. Appointments can be made by calling (415) 782-8982 or 14 || by emailing the appointment line at fedpro@sfbar.org. Telephone appomtments are available. 8 15 Lawyers at the Legal Help Center can provide basic assistance to parties representing themselves 2 16 || but cannot provide legal representation. 5 17 IT IS SO ORDERED. a kK 18 Dated: July 17, 2020

CHARLES R. BREYER

19 United States District Judge 20 21 22 23 24 25 26 27 28 habeas corpus is filed.”).