Donald Reed v. William Knipp

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/12/13 RECOMMENDING that this action be summarily dismissed because it plainly appears from the face of the petition that petitioner is not entitled to federal habeas relief pursuant to 28 U.S.C. § 2254. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD REED,

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Petitioner,

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vs.

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No. 2:12-cv-00827 KJM DAD P

WILLIAM KNIPP,

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FINDINGS AND RECOMMENDATIONS

Respondent.

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/

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner was granted leave to proceed in forma pauperis

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by minute order issued by U.S. Magistrate Judge Fernando Olguin. (Doc. No. 4.) This action

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was subsequently transferred from the U.S. District Court for the Central District of California to

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this court.

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In his habeas petition, petitioner challenges the imposition of a $10,000 restitution

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fine as part of a judgment entered against him in the Sacramento County Superior Court on April

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16, 1999. Petitioner claims that the sentencing court erred in failing to his ability to pay in

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imposing that restitution fine. (Doc. No. 1 at 11 & 15.) Petitioner contends that the restitution

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fine was imposed based on the assumption that he could pay it from his prison earnings.

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However, petitioner calculates that given his limited prison earnings, he would not be able to
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approach paying the entire $10,000 restitution fine even if he were to remain incarcerated for his

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minimum term of 16 years and 8 months and work a prison job for that entire time. (Id. at 16.)

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Accordingly, petitioner seeks a modification of the restitution fine imposed in his state court case

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from $10,000 to $200. (Id. at 17.)

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The court is required to examine a petition for federal habeas corpus relief before

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requiring a response to it. See Rules 3 & 4, Rules Governing § 2254 Cases. “If it plainly appears

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from the petition . . . that the petitioner is not entitled to relief in the district court, the judge must

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dismiss the petition . . . .” Rule 4, Rules Governing § 2254 Cases. Rule 4 “‘explicitly allows a

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district court to dismiss summarily the petition on the merits when no claim for relief is stated.’”

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O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 695 F.2d

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1195, 1198 (9th Cir. 1983)).

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Here, the court finds that because petitioner challenges solely the restitution fine

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aspect of his state court judgment of conviction, this court lacks jurisdiction to consider the

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pending federal habeas petition. Bailey v. Hill, 599 F.3d 976, 979-80 (9th Cir. 2010) (concluding

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that the court lacks jurisdiction over a habeas petition that challenges only a restitution order

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because the requirement that restitution be paid “is not by ordinary meaning a part of

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[petitioner’s] custody.”); United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999)

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(Interpreting 28 U.S.C. § 2255 and finding habeas relief is limited to those “seeking release form

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custody” and unavailable “to those . . . who challenge only fines or restitution orders.”); see also

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Bustamanate v. Lopez, No. 1:11-cv-00336-GSA-PC, 2013 WL 632258, at *4 n.2 (E.D. Cal. Feb.

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20, 2013) (“The Court also notes that the validity of the restitution aspect of Plaintiff’s

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conviction is not cognizable by way of a petition for writ of habeas corpus under 28 U.S.C. §

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2254, since it does not affect the fact or duration of his sentence.”); Calderon v. Long, No. 1:12-

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cv-01017-SKO-HC, 2012 WL 3292387 at *2 (E.D. Cal. Aug. 13, 2012) (citing the decision in

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Bailey and concluding that “liability under a restitution order is not a sufficiently serious restraint

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on liberty to warrant habeas relief . . . . Further, the remedy for restitution claims, namely,
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eliminating or altering a money judgment, has no direct impact upon, and is not directed at the

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source of the restraint upon, the petitioner’s liberty. Instead, it would affect only the fact or

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amount of the restitution that has to be paid.”).

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Accordingly, IT IS HEREBY RECOMMENDED that this action be summarily

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dismissed because it plainly appears from the face of the petition that petitioner is not entitled to

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federal habeas relief pursuant to 28 U.S.C. § 2254.

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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 fourteen

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days after being served with these findings and recommendations, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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In any objections he elects to file, petitioner shall 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)

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DATED: March 12, 2013.

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