UNITED STATES DISTRICT COURT

 DISTRICT OF OREGON

KENNETH R. KASHUBA, 

 

 Petitioner, 2:15-cv-81-SU

 

 

 v. FINDINGS AND 

 RECOMMENDATION

STATE OF OREGON, 

 

 Respondent. 

 

Sullivan, Magistrate Judge.

Petitioner filed a petition under 28 U.S.C. § 2254

challenging a July 15, 2011 conviction for which he alleged he

was sentenced to “[o]ne year incarceration followed by two

years probation.” Petition (#2) p. 2. 

On January 30, 2015, the court entered an order as

follows:

A petition or motion for habeas corpus relief

must be filed by a person who is "in custody" at

the time of filing. See, 28 U.S.C. §§ 2241(c),

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2254(a), 2255.; see also, Chacon v. Wood, 36 F.3rd

1459, 1462 (9th Cir. 1994) (habeas corpus petition

not moot based solely on petitioner's subsequent

release from custody). The custody requirement is

satisfied if an un-incarcerated petitioner is

subject to restraints not shared by the public

generally. See, Hensley v. Municipal Court, 411

U.S. 345, 351 (1973) (release prior to service of

sentence); Jones v. Cunningham, 371 U.S. 236, 242-

43 (1963) (release on parole). 

An expired or completely served sentence does

not meet the in custody requirement, even if that

sentence could subsequently be used to enhance a

future sentence, unless the petitioner is serving

the second of consecutive sentences. See, Garlotte

v. Fordice, 115 S.Ct. 1948, 1952 (1995)

(consecutive sentences); Malenge v. Cook, 490 U.S.

488, 491-92 (1989)(per curiam) (basis for later

enhancement). 

In this case, petitioner seeks to challenge a

2011 conviction for which he alleges he was

sentenced to one year incarceration and two years

of parole. Accordingly, based on the record before

the court, petitioner’s sentence appears to have

been completely served or has expired. Therefore, 

petitioner is not in custody for purposes of

challenging the conviction he seeks to challenge in

this proceeding.

 

 Petitioner is allowed 30 days to show cause in

writing why this proceeding should not be dismissed

on the ground that he is not in custody for

purposes of 28 U.S.C. § 2254. Petitioner is advised

that failure to show cause as directed herein will

result in the dismissal of this proceeding for

failure to prosecute. 

Order (#5) p 1 - 3.

On February 27, 2015, petitioner filed a response to the

court’s order to show cause which states inter alia:

 “To begin with, I would like to correct the

following error in my application for habeas

corpus. In reference to question 3. Length of

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sentence. I was sentenced in July of 2011 to 19

months incarceration followed by 3 years probation. 

I served 12 months with a 30 day transitional early

release which was followed by 25 months probation. 

Please forgive the error as I was extremely pressed

for time while filling out the form.

Response to Order of Dismissal (#6) p. 1 

 Petitioner’s Response further details his medical and

other problems, which are unfortunate, but immaterial to the 

“in custody” issue before the court.

Taking into consideration petitioner clarification of the

record, it is still apparent that he was sentenced on July 15,

2011, [43 months ago] and served 12 months incarceration

followed by 25 months probation [ie. 37 months]. Therefore, he

is no longer in custody for purposes of a § 2254 challenge to

his conviction.

Petitioner’s petition (#2) should be denied sua sponte

for lack of jurisdiction. The Clerk of Court should be

directed to enter a judgment dismissing this proceeding. 

 This recommendation is not an order that is immediately

appealable to the Ninth Circuit Court of Appeals. Any notice

of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate

Procedure, should not be filed until entry of the district

court's judgment or appealable order. The parties shall have

until March 30, 2015 to file specific written objections with

the court. Thereafter, the parties have fourteen (14) days

within which to file a response to the objections. Failure to

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timely file objections to any factual determinations of the

Magistrate Judge will be considered a waiver of a party's

right to de novo consideration of the factual issues and will

constitute a waiver of a party's right to appellate review of

the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's

recommendation.

Certificate of Appealability

Should petitioner appeal, a certificate of appealability

should be denied as petitioner has not made a substantial

showing of the denial of a constitutional right. See, 28

U.S.C. § 2253(c)(2). 

DATED this 11th day of March, 2015.

 /s/ Patricia Sullivan 

 Patricia Sullivan

 United States Magistrate Judge

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