Ross v. Hill
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/30/11: Ordering that petitioner's request for leave to proceed in forma pauperis is granted. The Clerk of the Court assign a district court judge to this case. Recommending that 1 Petition for Writ of Habeas Corpus be dismissed and this case be closed. F&R referred to Judge Lawrence K. Karlton. Objections to F&R due within twentyone days. (Kaminski, H)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ALEX ROSS,
Petitioner,
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vs.
R. HILL,
ORDER AND
Respondent.
FINDINGS AND RECOMMENDATIONS
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No. CIV-S-11-2551 CKD P
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254 along with a request to proceed in forma pauperis.
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Examination of petitioner’s in forma pauperis application reveals that petitioner is unable to
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afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be
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granted. See 28 U.S.C. § 1915(a).
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Under Rule 4 of the Rules Governing § 2254 Cases, the court must conduct a
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preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears
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that petitioner is not entitled to relief in this court.
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Petitioner challenges orders of restitution and fines which were imposed along
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with his sentence of imprisonment. The court may entertain a petition for writ of habeas corpus
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by a state prisoner only on the ground that the prisoner is in custody in violation of federal law.
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28 U.S.C. § 2254(a). Because petitioner’s challenge to an order of restitution and fines does not
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amount to a challenge to custody, his challenge may not be brought in a § 2254 action. Bailey v.
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Hill, 599 F.3d 976, 980-82 (9th Cir. 2010). Therefore, the court will recommend that this action
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be dismissed.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s request for leave to proceed in forma pauperis is granted; and
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2. The Clerk of the Court assign a district court judge to this case.
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IT IS HEREBY RECOMMENDED that:
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1. Petitioner’s application for writ of habeas corpus be dismissed; and
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2. This case be closed.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, petitioner may file
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objections. Such a document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” In his objections petitioner may address whether a certificate of
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appealability should issue in the event he files an appeal of the judgment in this case. See Rule
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11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a
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certificate of appealability when it enters a final order adverse to the applicant). Petitioner is
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: September 30, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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ross2551.114
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