Ruiz v. Martel

Filing 16

ORDER DISMISSING PETITION for Lack of Subject Matter. Court DECLINES to issue a Certificate of Appealability. CASE CLOSED. Signed by Magistrate Judge Sheila K. Oberto on 6/25/2010. (Vasquez, J)

1 2 3 4 5 6 7 8 9 10 MICHAEL RENE RUIZ, 11 Petitioner, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), v. M. MARTEL, Warden, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv--00939-SKO-HC ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION (Doc. 1) ORDER DIRECTING THE CLERK TO ENTER JUDGMENT AND CLOSE THE CASE ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 26, 2009 (doc. 5). Pending before the Court is the petition, which was filed on May 18, 2009. I. Screening the Petition Rule 4 of the Rules Governing § 2254 Cases in the United 1

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States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all

grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Habeas Rule 4, adv. comm. notes, 1976 adoption; O'Bremski

v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory committee notes to Habeas Rule

8, 1976 adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). II. Custody

Habeas relief shall be granted to a person in custody pursuant to the judgment of a state court only on the ground that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). The "in custody"

requirement for a habeas petition pursuant to § 2254 is jurisdictional and thus is the first question a habeas court must 2

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consider.

Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010).

The requirement has two aspects: 1) the petitioner must be in custody at the time the petition is filed, and 2) the custody must be under the conviction or sentence under attack at the time the petition is filed. Id.

"Custody" includes physical imprisonment as well as other significant or severe restraints on liberty, but it does not include mere collateral consequences of a conviction. 978-79, 980. Id. at

It is established that the imposition of a fine, by

itself, is not sufficient to meet the jurisdictional requirements of § 2254. Id. at 979 (quoting Williamson v. Gregoire, 151 F.3d Further, liability under a

1180, 1183 (9th Cir. 1998)).

restitution order is not a sufficiently serious restraint on liberty to warrant habeas relief. 979. The mere fact that a petitioner is physically in custody when challenging a restitution order is insufficient to render the claim cognizable where the petitioner is not challenging the lawfulness of his custody under federal law. F.3d at 979-980, 984. Bailey v. Hill, 599 Bailey v. Hill, 599 F.3d at

Mere physical custody does not provide the

required nexus between the petitioner's claim and the unlawful nature of the custody; instead, § 2254(a) requires that the substance of the claim being asserted must challenge the legality of the custody on the ground that it is, or was imposed, in violation of the Constitution, laws, or treaties of the United States. Id. at 980-81.

Further, the remedy for claims concerning restitution, namely, eliminating or altering a money judgment, has no direct 3

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impact upon, and is not directed at the source of the restraint upon, the petitioner's liberty. Instead, it would affect only

the fact or amount of the restitution that has to be paid. Id. at 981. III. Analysis

Here, Petitioner has alleged that at the time of filing the petition, he was a state prisoner serving a life sentence. 11.) (Pet.

He challenges a state sentencing court's imposition of a

restitution fine pursuant to Cal. Govt. Code § 13967 in February 1991, which was accompanied by a sentence of three years and eight months. (Pet. 1, 12.) Petitioner argues that the $1,000

fine was imposed without a determination that Petitioner had the ability to pay the fine; Petitioner also argues that his counsel was ineffective at sentencing for failing to object to the restitution fine. (Pet. 12-13.) However, Petitioner further

alleges that he served out the entire term of imprisonment and parole imposed in 1991. (Id. 13.) It was only after Petitioner

was subsequently arrested and sentenced to prison for a life term that efforts were made to collect the restitution fine. 13-14.) It thus appears that Petitioner's custody is not related to the restitution fine he challenges, and that Petitioner's claim does not challenge the lawfulness of his custody or its duration. Likewise, any remedy fashioned by this Court would affect only a monetary obligation, and not Petitioner's custody. Accordingly, the Court concludes that it does not have subject matter jurisdiction over Petitioner's claim or claims. (Id. at

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IV.

Dismissal of the Petition

Because this Court does not have jurisdiction over a habeas corpus petition brought pursuant to § 2254 challenging only a restitution order, the petition must be dismissed. Hill, 599 F.3d 976, 984 (9th Cir. 2010). V. Certificate of Appealability Bailey v.

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue

U.S. 322, 336 (2003).

only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a

petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 A

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right or that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. 529 U.S. 473, 483-84 (2000). Slack v. McDaniel,

In determining this issue, a court

conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. 5 Id.

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It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Id. at 338. A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Habeas Rule 11(a).

Here, because Petitioner's claims relate only to a restitution order, jurists of reason would not find it debatable whether the Court was correct in its ruling. Accordingly,

Petitioner has not made a substantial showing of the denial of a constitutional right, and the Court declines to issue a certificate of appealability. VI. Disposition Accordingly, it is ORDERED that: 1) The petition for writ of habeas corpus is DISMISSED for lack of subject matter jurisdiction; 2) The Clerk of Court is DIRECTED to enter judgment and close the case; and 3) The Court DECLINES to issue a certificate of appealability.

IT IS SO ORDERED. Dated: ie14hj June 25, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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