Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Audrey B. Collins, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On May 2, 2014, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody." The Petition seeks to challenge a determination of the Orange County Superior Court deeming Petitioner, a juvenile, to be a "ward of the court" within the meaning of California Welfare and Institutions Code section 602. Respondent filed an Answer on June 2, 2014. Petitioner did not file a Reply within the allotted time.
BACKGROUND
On October 2, 2011, the Orange County Superior Court found true the allegations that Petitioner, a juvenile, had committed the offenses of second degree robbery, aggravated assault, brandishing a weapon and receiving stolen property (Reporter's Transcript ["R.T."] 769-71; Clerk's Transcript ["C.T."] 1-3, 40, 76). The court declared Petitioner to be a "ward of the court" within the meaning of California Welfare and Institutions Code section 602 (R.T. 792; C.T. 82). The court sentenced Petitioner to 60 days in a juvenile facility, with credit for 60 days previously served, to be followed by a period of probation (R.T. 792-95; C.T. 83). The court ordered Petitioner released to Petitioner's parents (R.T. 793, 797; C.T. 83).
The California Court of Appeal reversed the judgment as to the charge of receiving stolen property, but otherwise affirmed the judgment (Respondent's Lodgment 6; see People v. Niko P., 2013 WL 1146442 (Cal.Ct.App. Mar. 20, 2013). The California Supreme Court summarily denied Petitioner's petition for review and subsequent petition for writ of habeas corpus(Respondent's Lodgments 9, 10, 11, 12).
On April 3, 2013, the Orange County Superior Court issued an order in Petitioner's juvenile proceedings stating, inter alia: "Court orders wardship and all proceedings terminated forthwith" (Respondent's Lodgment 13).
DISCUSSION
Subject matter jurisdiction over habeas petitions exists only when, at the time the petition is filed, the petitioner is "in custody" under the conviction challenged in the petition. Maleng v. Cook , 490 U.S. 488, 490-91 (1989); 28 U.S.C. §§ 2241(c), 2254(a). A habeas petitioner does not remain "in custody" under a conviction once the sentence imposed for the conviction has "fully expired." Maleng v. Cook , 490 U.S. at 492. Petitioner evidently completed service of the sentence for the conviction challenged in the present Petition prior to the date he filed the present Petition. Thus, Petitioner was not "in custody" under the challenged conviction at the time he filed the present Petition. See Tartarinov v. Superior Court of the State of California , 388 Fed.App'x 624, 624-25 (9th Cir. 2010) (district court lacked jurisdiction over petition filed after petitioner completed his probationary sentences; "a defendant is no longer "in custody" once he is discharged from probation or parole") (citation omitted); Reiner v. Remington , 217 Fed.App'x 681, 682 (9th Cir. 2007) (district court lacked jurisdiction over petition filed after petitioner's probation had expired); Henry v. Lungren , 164 F.3d 1240, 1241-42 (9th Cir.), cert. denied, 528 U.S. 963 (1999) (district court lacked jurisdiction over petition filed after petitioner's discharge from parole). Accordingly, habeas jurisdiction is unavailable. Id.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition without prejudice.