888 F. 2d 130 - Robbins v. Washington County Prosecutor's Office

MEMORANDUM^*

Zebulin Robbins appeals pro se the district court's denial of his petition for habeas corpus relief. The district court found that Robbins failed to satisfy the jurisdictional requirement that he be "in custody" at the time he brought his petition. According to the district court, Robbins did not satisfy the in custody requirement because he failed to allege a significant relation between his prior and present confinements. We agree and therefore affirm.

Zebulin Robbins was convicted of attempted rape in the first degree in the state of Oregon on June 22, 1973. He was discharged from parole for this offense on February 12, 1978, and received a full pardon on September 2, 1982. In 1985, Robbins was convicted of rape in the first degree while armed with a deadly weapon, again in the state of Oregon. Robbins is currently incarcerated for this crime.

Robbins received a full pardon for the 1973 offense. He petitioned the district court for habeas corpus relief, alleging that the record of his first conviction and certain information obtained as a result of that conviction are currently being used to deprive him of his liberty. The district court denied Robbins' petition.

This court reviews de novo a district court's decision on a petition for habeas corpus. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 108 S.Ct. 198 (1987).

A federal district court has subject-matter jurisdiction to entertain a petition for habeas relief only if the petitioner is "in custody" at the time the petition is brought. See Maleng v. Cook, 109 S.Ct. 1923, 1925 (1989).

A petitioner for habeas relief bears the burden of sustaining the allegations in the habeas corpus petition. See Hawk v. Olson, 326 U.S. 271 (1945). Accord Whitney v. Craven, 460 F.2d 1267 (9th Cir.1972); Schlette v. People of State of California, 284 F.2d 827, 833-4 (9th Cir.1960). Accordingly, mere conclusory allegations that are not supported by fact will not suffice. Schlette, 284 F.2d at 834. See also Pavao v. Cardwell, 583 F.2d 1075, 1077 (9th Cir.1978). An examination of the record below reveals that Robbins made only vague and unsupported allegations regarding the relationship between his past conviction and his present confinement. Robbins alleged generally that there were continued collateral legal consequences resulting from the use of information in the record of arrest file from the pardoned 1973 offense. The most specific of his allegations appears to be that: certain psychological information contained in this file was used to somehow classify him; this classification led to the imposition of a requirement that Robbins submit to further psychological evaluations; and this requirement was causing his continued detention. Robbins offered no evidence to the district court to support these vague allegations. We conclude that Robbins did not sustain his burden of proof on these issues. Accordingly, we hold that the district court properly found that Robbins failed to satisfy the "in custody" requirement.

Robbins offers new evidence to this court to support the above allegations. We do not consider this evidence because it was not presented to the district court.

Robbins also raises new issues on appeal, including the assertion that the sentence which he is currently serving was enhanced due to his prior conviction. We do not decide issues which were not presented in the district court. See Jovanovich v. U.S., 813 F.2d 1035 (9th Cir.1987).

AFFIRMED.