Joby Fraire v. T Perez

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Jean P. Rosenbluth. IT THEREFORE IS ORDERED that on or before April 27, 2015, Petitioner show cause in writing, if he has any, why the Court should not dismiss this action because it is not cognizable on federal habeas review. Petitioner is advised that his failure to timely comply with this Order may result in his Petition being dismissed for the reasons stated herein and for failure to prosecute. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOBY FRAIRE,

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Petitioner,

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vs.
T. PEREZ, Warden,

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Respondent.

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) Case No. CV 15-2157-DSF (JPR)
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) ORDER TO SHOW CAUSE
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On March 23, 2015, Petitioner filed a “Motion for

18 Modification of Sentence”/Petition for Writ of Habeas Corpus
19 under 28 U.S.C. § 2254.

Petitioner challenges only the state

20 trial court’s restitution order and relies exclusively on state
21 law.
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Petitioner’s restitution claim is not cognizable on federal

23 habeas review because it does not challenge the validity or
24 duration of his confinement.

See United States v. Thiele, 314

25 F.3d 399, 401 (9th Cir. 2002) (holding under 28 U.S.C. § 2255
26 that claims challenging restitution not cognizable on federal
27 habeas review because they are unrelated to validity or duration
28 of confinement); Bailey v. Hill, 599 F.3d 976, 984 (9th Cir.
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1 2010) (applying Theile to § 2254 petition challenging only
2 restitution).1
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IT THEREFORE IS ORDERED that on or before April 27, 2015,

4 Petitioner show cause in writing, if he has any, why the Court
5 should not dismiss this action because it is not cognizable on
6 federal habeas review.

Petitioner is advised that his failure to

7 timely comply with this Order may result in his Petition being
8 dismissed for the reasons stated herein and for failure to
9 prosecute.
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11 DATED: March 26, 2015
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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The Petition may well be time barred, too.
Although
Petitioner states that his Petition for Review was denied by the
California Supreme Court in March 2014 (Pet. at 3), the attached
order shows that the supreme court was ruling on a habeas petition,
not a petition for review. Petitioner was apparently convicted of
murder in 2001 (Pet. at 2), and the California Supreme Court denied
his Petition for Review in December 2002. See People v. Fraire,
No. B156882, 2002 WL 1904429 (Ct. App. Aug. 20, 2002), review
denied, No. S110993 (Cal. Dec. 11, 2002). Thus, the AEDPA one-year
limitation period apparently ran long ago.
If Petitioner
satisfactorily responds to this Order to Show Cause, the Court will
require him to demonstrate the timeliness of the Petition before it
will reach its merits.
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