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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF OREGON 

SIR GIORGIO SANFORD CLARDY, 

 Petitioner, 

 v. 

STATE OF OREGON, et al., 

 Respondents. 

Case No. 2:15-cv-00412-YY 

FINDINGS AND RECOMMENDATION 

 

YOU, Magistrate Judge. 

 On April 3, 2015, petitioner filed this 28 U.S.C. § 2254 

habeas corpus case challenging four August 2006 drug convictions 

from Multnomah County. Respondent asks the court to dismiss the 

Petition on the basis that petitioner was not in custody 

pursuant to those convictions at the time he filed this action. 

DISCUSSION 

 Federal habeas corpus law permits prisoners to challenge 

the validity of convictions under which they are "in custody." 

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Garlotte v. Fordice, 515 U.S. 39, 43-44 (1995); Feldman v. 

Perrill, 902 F.2d 1445, 1446 (9th Cir. 1990); Brock v. Weston, 

31 F.3d 887, 889 (9th Cir. 1994). The habeas corpus remedy is 

an extraordinary one which is not intended to be used "for cases 

in which the restraints on liberty are neither severe nor 

immediate." Hensley v. Municipal Court, 411 U.S. 345, 351 

(1973). Once a habeas petitioner's sentence has expired, "some 

concrete and continuing injury other than the now-ended 

incarceration or parole--some 'collateral consequence' of the 

conviction--must exist if the suit is to be maintained." 

Spencer v. Kemna, 523 U.S. 1, 7 (1998). The custody requirement 

must be satisfied at the time the petition is filed. Maleng v. 

Cook, 490 U.S. 488, 490-91 (1989); Feldman, 902 F.2d at 1448. 

 Respondent asserts that the sentences for the convictions 

at issue in this case expired completely on March 13, 2010. He 

argues that where petitioner did not file this case until April 

3, 2015, he was not in custody pursuant to those convictions 

such that habeas relief is unavailable to him. Petitioner does 

not disagree with this characterization, but claims that he 

should be excused from the custody requirement due to excessive 

judicial delay in Oregon’s state courts. The entirety of his 

argument on this point reads: 

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The state moves to dismiss the petition on 

the grounds that Clardy’s sentence expired 

after he had filed his petition, relying on 

Maleng v. Cook, 490 U.S. 488, 489-90 (1989). 

Clardy urges the court to deny that motion 

on the grounds that an unreasonable delay 

occurred in his appeal and post conviction 

processes for which he should not be 

penalized. 

Memo in Support (#47), p. 12. 

 Although excessive appellate delay may excuse a habeas 

petitioner from exhausting his state court remedies, Coe v. 

Thurmond, 922 F.2d 528, 530 (9th Cir. 1990), petitioner provides 

no authority for the proposition that state-court appellate 

delay excuses the custody requirement. Even assuming the 

custody requirement could be excused in this manner, it is not 

possible from the limited record before the court to conclude 

that petitioner was not the cause of at least some of the delay 

he claims to have experienced. The court can only ascertain 

that: (1) petitioner was convicted in August 2006, and his 

direct appeal became final 29 months later when the Oregon 

Supreme Court denied review on January 13, 2009; and 

(2) petitioner filed for post-conviction relief on July 29, 

2009, a process that ended when the Oregon Supreme Court again 

denied review on February 5, 2015. State v. Clardy, 345 Or. 618 

(2009); Clardy v. State, 356 Or. 689 (2015). 

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 From this procedural history, there is no indication that 

petitioner experienced any unreasonable delay during his direct 

review. His post-conviction trial and subsequent appeals did 

take more than five years to complete but such a delay, even if 

excessive, was not the cause of his inability to meet the 

custody requirement where petitioner left custody only eight 

months into his post-conviction proceedings. Accordingly, any 

delay he may have experienced in his post-conviction proceedings 

is not germane to the custody issue. The Petition for Writ of 

Habeas Corpus should therefore be dismissed. 

RECOMMENDATION 

 For the reasons identified above, the Petition for Writ of 

Habeas Corpus (#2) should be dismissed, and a judgment should be 

entered dismissing this case with prejudice. The court should 

decline to issue a Certificate of Appealability on the basis 

that petitioner has not made a substantial showing of the denial 

of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). 

SCHEDULING ORDER 

 This Findings and Recommendation will be referred to a 

district judge. Objections, if any, are due within 17 days. If 

no objections are filed, then the Findings and Recommendation 

will go under advisement on that date. 

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 If objections are filed, then a response is due within 14 

days after being served with a copy of the objections. When the 

response is due or filed, whichever date is earlier, the 

Findings and Recommendation will go under advisement. 

 DATED this 14th day of November, 2016. 

 

 /s/Youlee Yim You________ 

 Youlee Yim You 

 United States Magistrate Judge 

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