NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Michael AUGUST, Petitioner-Appellant,
v.
Ira REINER, et al., Respondents-Appellees.
No. 89-55114.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 28, 1990.*
Decided March 5, 1990.
Before ALARCON, CYNTHIA HOLCOMB HALL and DAVID R. THOMPSON, Circuit Judges.
Michael August appeals pro se the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. We affirm.
August was convicted after a jury trial of assault with a deadly weapon. He was sentenced to one year in prison. He filed the instant petition on November 28, 1988 asserting that his conviction was illegal. However, August was released from confinement on July 27, 1988. Because he was not "in custody" at the time he filed his habeas petition, he cannot obtain relief under section 2254. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968).1
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Although the district court dismissed the petition for failure to exhaust state remedies, we may affirm on any basis supported by the record. See Kelson v. City of Springfield, 767 F.2d 651, 656 (9th Cir.1985)