Austin v. State of California, San Francisco Superior Court

Background

Gregory A. Austin filed a petition under 28 U.S.C. § 2254 challenging a domestic-violence protective order issued by the Superior Court of California in 2013 during his divorce and extended for five years in 2016. The order prohibited him from communicating with or coming within 100 yards of his former spouse and son, going within 100 yards of his previous residence, and possessing firearms or firearm accessories. Austin argued that the order violated rights under the First through Tenth and Fourteenth Amendments. He filed the action without a lawyer.

Custody requirement

A federal court may consider a petition under § 2254 only when the petitioner is “in custody pursuant to the judgment of a State court.” The court explained that custody can include restraints short of physical confinement, but the restraint must significantly limit physical liberty. It concluded that the firearm restrictions and communication ban were not enough. It also concluded that the restrictions on going within 100 yards of the protected parties and Austin’s former residence did not impose a significant enough restraint on his freedom of movement to create federal habeas jurisdiction.

Because Austin had not shown that he was in the required custody, the court held that it lacked subject-matter jurisdiction and was required to dismiss the petition under Habeas Rule 4, which permits early dismissal when the petition plainly shows that the petitioner is not entitled to relief.

Statute of limitations

The court separately considered the one-year limitations period for a § 2254 petition. Austin identified September 20, 2016, as the date the protective order was extended. He did not allege that he sought direct review, that the State prevented him from filing, that he relied on a newly recognized constitutional right, or that he discovered the factual basis for his claims within the year before filing. The court therefore concluded that the petition would also be barred by the limitations period even if Austin were in custody.

Leave to amend and disposition

The court found that amendment would not necessarily be futile. Austin might be able to allege facts showing that the protective order required ongoing attendance at a specific location, which could potentially satisfy the custody requirement. He might also be able to allege facts showing that a state filing impediment was recently removed or that he discovered the factual basis for a claim within the preceding year.

Judge Charles R. Breyer dismissed the complaint without prejudice and granted leave to amend within 45 days. The court also recommended that Austin consult the Federal Pro Bono Project’s Legal Help Center, while noting that the center could provide basic assistance but not legal representation.