United States District Court, D. North Dakota
ORDER SUBSTITUTING NAMED RESPONDENT AND DIRECTING
RESPONDENT TO ANSWER
Charles S. Miller, Jr., United States Magistrate Judge
was convicted in December 11, 2017, by the State of North
Dakota for the offense of terrorizing. (No.
08-2017-CR-03178). Petitioner pled guilty and received a
sentence of one-year deferred imposition, a one-year term
unsupervised probation, and community service. Sometime
thereafter, petitioner, a green card holder, was taken into
Immigration and Customs Enforcement ("ICE")
custody. Petitioner is currently incarcerated at the
Sherburne County Jail in Elk River, Minnesota.
November 5, 2018, petitioner filed a Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody. Petitioner is unclear in his request for relief, but
appears to ask for his felony conviction to be
"dropped" or for his case to be reopened and his
JURISDICTION OVER § 2254 PETITIONS
appears to challenge the validity of the 2017 state
conviction that allegedly forms the basis of his deportation
order. Petitioner files his petition pursuant to 28 U.S.C.
§ 2254. § 2254 authorizes this court to
"entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a) (emphasis
added). The court must first address whether or not
petitioner is "in custody" within the meaning of
U.S. Supreme Court held that the requirement under §
2254 that the person challenging a state court judgment be
"in custody" is jurisdictional. Maleng v.
Cook, 490 U.S. 488, 498 (1989). The "in
custody" requirement is determined at the time the
petition was filed. See id Physical custody is not necessary,
but collateral consequences such as the right to vote or the
risk of an enhanced sentence are not sufficient to render an
individual "in custody". See Id. at 494;
Jones v. Omningham, 371 U.S. 236, 240 (1963).
habeas court does not have jurisdiction over a
§ 2254 petition filed after expiration of a
state sentence. See Maleng, at 492; Qgunwomoiu
v. U.S., 512 F.3d 69, 74-75 (5th Cir. 2008); Kandiel
v. US., 964 F.2d 794, 796 (8th Cir. 1992). But, in the
present case, the state record suggests that at the time
petitioner filed his habeas petition, November 5, 2018, his
state sentence for one-year deferred imposition and one-year
unsupervised probation had not been formally suspended and
remained pending, thereby rendering petitioner "in
custody" for the purposes of filing a habeas petition.
Cf Maleng, at 492 (holding that habeas petition
filed after expiration of state sentence removes subject
matter jurisdiction because petitioner is not longer "in
as a preliminary matter, the court must review the petition
to ensure that the correct respondent has been named. See
Rule 2(a) of the Rules Governing § 2254 Cases (requiring
a petitioner currently in custody under a state-court
judgment to name the state officer who has custody of the
petitioner names the State of North Dakota and the South
Central Judicial District as respondents, presumably because
petitioner pled guilty and was convicted in state district
court in the South Central Judicial District of North Dakota.
While petitioner is currently incarcerated in an ICE facility
because his state court sentence has not expired he remains
in the legal custody of the State. See Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973)
(state prisoner may bring petition in federal district where
he is confined or in the federal district where the
sentencing court is located).
Dakota law provides,
The director of the department of corrections and
rehabilitation shall be responsible for offenders committed
to the legal and physical custody of the department. The
director shall retain, confine, and imprison each offender
committed to the department until the expiration of the
offender's sentence or until the offender is lawfully
entitled to release.
N.D.C.C. § 12-47-18. Additionally, the advisory
committee note to Rule 2(a) of the Rules Governing §
2254 states that a chief officer in charge of state penal
institutions is a proper respondent in a §2254 petition.
court takes judicial notice that Leann Bertsch is the
Director of the North Dakota Department of Corrections and
Rehabilitation and therefore is the chief officer in charge
of the State's penal institutions. It further finds that
Director Bertsch functions as a proper respondent in this
instance. See Ortiz-Sandoval v. Gomez.81 F.3d 891,
894 (9th Cir. 1996) ("The Director of Corrections
functions as a proper respondent here. A contrary result
would not serve the efficient administration of justice. In
cases where a prisoner has been transferred or where his
immediate custodian has otherwise been put in doubt, the
Director of Corrections serves as an ...