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On June 1, 2000, petitioner pleaded guilty in Snohomish County Superior Court to one

count of theft of rental, leased or lease-purchased property valued at $1,500 or more. Dkt. No.

25, Ex. 1. 

ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MICHAEL A. BURNHART,

Petitioner,

v.

JAMES THATCHER,

Respondent.

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Case No. C05-1603-JLR-JPD

ORDER

Petitioner is an inmate at the King County Correctional Facility in Kent, Washington

who has filed a pro se 28 U.S.C. § 2254 petition for writ of habeas corpus. Petitioner does

not challenge his current sentence. Rather, he attacks his September 19, 2001, sentence in

Snohomish County Superior Court for one count of theft of rental, leased or lease-purchased

property valued at $1,500 or more. Dkt. Nos. 9, 10, 25, Ex. 1.1

 The State court sentenced

petitioner to twelve months and one day incarceration, with 111 days credit for the time he

served prior to sentencing. Dkt. No. 25, Exs. 2, 3. It also imposed restitution and certain

other costs, but imposed no community custody, community placement, or other postincarceration obligation. Id. As petitioner’s reply indicates, he concluded this sentence on or

around March 8, 2002. Dkt. No. 26 at 3. 

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ORDER

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The government has filed a response opposing the petition. Dkt. No. 23. Among

other things, it argues that petitioner is no longer in custody pursuant to the challenged

conviction and that the Court therefore lacks jurisdiction. The record, however, is inadequate

to make this determination.

In order for a federal court to have jurisdiction to issue a writ of habeas corpus, the

petitioner must be “in custody pursuant to the judgment of a State court . . . in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Maleng v. Cook,

490 U.S. 488, 490, 494 (1989) (per curiam). This requires that the petitioner be in custody

pursuant to the sentence he is attacking by way of his petition. Maleng, 490 U.S. at 490-91. 

The in-custody requirement can be satisfied by physical incarceration, supervised release,

court-ordered treatment programs, and other conditions that impose significant limitations on

a petitioner’s liberty. Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) (internal

citations omitted). In limited circumstances, the in custody requirement for an expired

sentence can be satisfied when a petitioner is currently incarcerated on a second, related

sentence. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001); Brock v.

Weston, 31 F.3d 887 (9th Cir. 1994). However, “once the sentence imposed for a conviction

has completely expired, the collateral consequences of that conviction are not themselves

sufficient to render an individual in custody for purposes of the habeas attack upon it.” 

Maleng, 490 U.S. at 492. 

The record in this case is insufficient to accurately determine whether the in custody

requirement is satisfied. Therefore, pursuant to Rule 7 of the Rules Governing § 2254 Cases

in U.S. District Courts, the Court directs respondent to supplement the record with

information regarding: 

(1) When petitioner completed his 2001 sentence, or confirmation that the March 8,

2002, release date that petitioner indicated in his responsive brief is accurate;

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ORDER

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(2) The charge(s), duration, and expected release date of the sentence petitioner is

currently serving; and

(3) The relationship of petitioner’s current sentence, if any, to his challenged 2001

sentence. 

Respondent shall provide the above-described information no later than May 18,

2006. After respondent has supplemented the record, petitioner shall file a response that

addresses the correctness of the supplemental materials. Petitioner’s response shall be filed

no later than June 1, 2006. A showing of good cause in advance of the deadline is required

if either party wishes to extend these deadlines.

The Clerk is directed to send a copy of this order to petitioner, respondent, and to the

Honorable James L. Robart.

DATED this 18th day of April, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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