1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 GARY B. MOORE, 4 Case No. 19-cv-05684-RS (PR) Petitioner, 5 v. ORDER OF DISMISSAL 6 JEFF LYNCH, 7 Respondent. 8

9 10 This federal habeas petition will be dismissed for want of jurisdiction. Petitioner 11 challenges a 1985 state conviction for which he received a sentence of two years. Because 12 it is more than 34 years after this sentence was imposed, petitioner cannot be in custody for 13 the 1985 conviction. Because he is not in custody on the conviction he challenges, the 14 Court lacks jurisdiction over this petition. The federal writ of habeas corpus is only 15 available to persons “in custody” at the time the petition is filed. See 28 U.S.C. 16 §§ 2241(c), 2254(a); Carafas v. LaVallee,

(1968). This requirement is 17 jurisdictional.

18 This same 1985 conviction was used to enhance the 2005 state convictions that are 19 the cause of petitioner’s current imprisonment. Petitioner challenged the 1985 conviction 20 as part of the habeas petition he filed against his 2005 convictions. (Moore v. Hedgpeth, 21 09-cv-01634-RS.)1 This provides an additional reason for dismissal. By attempting to 22 invalidate his 1985 conviction, petition is thereby yet again challenging his 2005 23 1 This 2009 federal habeas petition was denied. (Moore v. Hedgpeth, 09-cv-01634, Dkt. 24 No. 55.) Petitioner’s appeal was unsuccessful. (Dkt. No. 64.) 25 In 2015, petitioner filed another habeas suit against his 2005 convictions, after obtaining a new judgment from the state court, which denied his petition for resentencing under new 26 state laws. (Moore v. Macomber, 15-cv-04269-RS.) The 2015 petition was dismissed because the claims were untimely, procedurally defaulted, or not cognizable. (Id., Dkt. 27 No. 19.) Petitioner’s appeal was terminated when the Ninth Circuit Court of Appeals 1 convictions and sentence. In order to file a second or successive petition, petitioner must 2 obtain an order from the Court of Appeals authorizing the district court to consider the 3 petition. See

(b)(3)(A). Petitioner has not shown that he has received 4 such authorization. If the petition were not dismissed for want of jurisdiction, it would be 5 dismissed as second or successive, the filing of which has not been authorized by the Court 6 of Appeals. 7 Any contention that he is in custody on the 1985 conviction because it was used to 8 enhance the sentence he is currently serving is without merit. If his 2005 convictions were 9 voided, his sentence for those convictions, enhancements and all, would be voided as well. 10 He could not be held on the 1985 conviction, the sentence for which expired over three 11 decades ago. 12 It is unclear why petitioner has filed this habeas action now, as the state appellate 13 court noted in its January 2019 denial of a state habeas suit petitioner filed. “[P]etitioner 14 provides no record demonstrating that there is a pending criminal proceeding to which the 15 motion [to the superior court to conduct an evidentiary hearing regarding the 1985 16 conviction] could properly attach.” (Pet., Dkt. No. 1 at 42.) 17 A certificate of appealability will not issue. Petitioner has not shown “that jurists of 18 reason would find it debatable whether the petition states a valid claim of the denial of a 19 constitutional right and that jurists of reason would find it debatable whether the district 20 court was correct in its procedural ruling.” Slack v. McDaniel,

(2000). 21 The petition is DISMISSED for want of jurisdiction. The Clerk shall enter 22 judgment in favor of respondent and close the file. 23 IT IS SO ORDERED. 24 Dated: September _1_6_, 2019 _________________________ 25 RICHARD SEEBORG 26 United States District Judge 27