                                                                              FILED
                             NOT FOR PUBLICATION                               SEP 22 2011

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



SHAWN JAMES ALLEN WOODALL,                         No. 09-55997

              Petitioner - Appellant,              D.C. No. 3:08-cv-01132-BTM-
                                                   RBB
  v.

GENE BEAUCHAMP, Warden; et al.,                    MEMORANDUM *

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Southern District of California
                   Barry Ted Moskowitz, District Judge, Presiding

                       Argued and Submitted August 31, 2011
                               Pasadena, California

Before: SCHROEDER and GOULD, Circuit Judges, and MCCUSKEY, Chief
District Judge.**

       Appellant Shawn James Allen Woodall appeals the district court’s denial of

his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 arguing on

appeal that: (1) his due process rights were violated by the failure of the state trial


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
       **
             The Honorable Michael Patrick McCuskey, Chief District Judge for
the U.S. District Court for Central Illinois, Urbana, sitting by designation.
court to provide preliminary and final probation revocation hearings; (2) this

constitutional error should be considered structural and therefore not considered

under a harmless error analysis; and (3) the alleged constitutional error, even under

a harmless error analysis, was not harmless. We lack jurisdiction under 28 U.S.C.

§ 2254, and thereby dismiss this appeal.

      A federal court only has jurisdiction under 28 U.S.C. § 2254 to grant a writ

of habeas corpus to a person “in custody in violation of the Constitution or laws or

treaties of the United States” at the time the writ is filed. 28 U.S.C. § 2254 (a);

Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (“The federal habeas corpus statute

requires that the applicant must be ‘in custody’ when the application for habeas

corpus is filed.”). The Supreme Court has held that the “in custody” status is

satisfied for jurisdictional purposes even when the person is no longer in prison,

but rather remains on parole as a result of the conviction he is challenging. Jones

v. Cunningham, 371 U.S. 236, 243 (1963).

      Appellant filed his application for habeas corpus in the federal district court

on June 24, 2008. Although Appellant was in prison on that date, he was in

custody on charges unrelated to the conviction and related probation revocation he
is challenging.1 Appellant was not in custody for purposes of the conviction he is

challenging as he received credit for time served in excess of the 2-year sentence

he received as a result of his probation violation committed in 2006. Furthermore,

any parole that Appellant will be subject to will relate to the subsequent unrelated

convictions that he was sentenced to on October 19, 2007. Therefore, we lack

jurisdiction under 28 U.S.C. § 2254 to consider this case, as Appellant was not “in

custody” as a result of the conviction and related probation revocation in case

number SCD176528.

      DISMISSED.




      1
        Appellant is challenging the revocation, reinstatement and extension of his
probation which was initially received in case number SCD176528, in which he
pled guilty to one count of evading a police officer with reckless driving. After
this probation was extended on September 28, 2006, Appellant violated the terms
of the probation by committing another crime. On October 19, 2007, Appellant
was sentenced to multiple terms. They were: (1) a four-year prison term for case
number SCD202824; (2) in the probation violation resulting from case number
SCD176528, he was sentenced to two years to run concurrently with his sentence
in case number SCD202824; and (3) in the probation violation resulting from an
unrelated conviction in 2006, he was sentenced to four years to run concurrently
with his sentence in case number SCD202824.
