Essie Simpson, III v. John Marshall

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 17 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ESSIE SIMPSON, III, No. 12-55908 Petitioner - Appellant, D.C. No. 2:09-cv-01825-MMM- AGR v. JOHN MARSHALL, MEMORANDUM* Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding Argued and Submitted October 8, 2014 Pasadena, California Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.

Essie Simpson III appeals the district court’s denial of his petition for the writ of habeas corpus. His appeal seeks to invalidate his guilty plea in California state court to one count of possession of PCP for sale on the grounds that his attorney was ineffective for failing to advise him that a guilty plea would require Simpson to register as a gang member. We affirm.

We consider sua sponte any requirement that “goes to subject matter jurisdiction.” Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012). 28 U.S.C. § 2254(a) imposes a two-part jurisdictional test in habeas cases. First, the petitioner must be “in custody” when the petition is filed. Second, he must be challenging “the judgment of a State court only on the ground that he is in custody in violation of” federal law. 28 U.S.C. § 2254(a). To be “in custody,” Simpson must be subject to a sentence that “somehow limits [his] movement.” Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998).

Simpson fails to satisfy the second prong, because he is subject only to gang registration, and cannot be granted relief from a completed prison sentence.1 Thus, the remedy Simpson seeks “does not directly impact” his liberty. Bailey v. Hill, 599 F.3d 976, 981 (9th Cir. 2010). Since Simpson’s liberty is not restricted, this court lacks habeas jurisdiction, and the district court’s judgment denying the writ of habeas corpus is AFFIRMED.

FILED Simpson v. Marshall, No. 12-55908 NOV 17 2014 MOLLY C. DWYER, CLERK PREGERSON, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I dissent because I believe Simpson satisfies the second prong of the jurisdictional test stated in Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010).

Simpson contends that his guilty plea was not knowingly made but was the result of ineffective assistance of counsel because counsel failed to advise him on the gang registration requirement. In other words, Simpson challenges the legality of his conviction and subsequent custody on the ground that it was imposed in violation of federal law. I agree with both parties that, under Bailey, this is enough to satisfy the second prong. Id. Accordingly, I would find jurisdiction and proceed to consider the merits of the habeas petition.