Heller v. People of the State of California

Filing 7

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/28/2017 GRANTING petitioner's 6 request to proceed IFP; petitioner's petition for writ of habeas corpus is SUMMARILY DISMISSED; this case is CLOSED; and the court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEROY ALLEN HELLER,

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No. 2:17-cv-0042 CKD P

Petitioner,
v.

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. He has consented to have all matters in this action before a

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United States Magistrate Judge. See 28 U.S.C. § 636(c).

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Petitioner requests leave to proceed in forma pauperis. Examination of the in forma

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pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the

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application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

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Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all

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petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the

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petitioner is not entitled to relief. The court has conducted that review.

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Petitioner challenges the amount of restitution he was ordered to pay when sentenced and

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the amount of credit he has been given against that amount for time served in custody. However,

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28 U.S.C. § 2254(a) is clear that the court can only entertain a petition for writ of habeas corpus
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brought by a state prisoner under § 2254 if there is an allegation that the prisoner is in custody in

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violation of federal law. There is no habeas jurisdiction to hear claims brought by state prisoners

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concerning an order that they pay restitution. E.g. Bailey v. Hill, 599 F.3d 976 (9th Cir. 2010).

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For these reasons, IT IS HERBY ORDERED that:

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1.

Petitioner’s request for leave to proceed in forma pauperis (ECF No. 6) is granted;

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2.

Petitioner’s petition for writ of habeas corpus is summarily dismissed;

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3.

This case is closed; and

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4.

The court declines to issue the certificate of appealability referenced in 28 U.S.C. §

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2253.
Dated: February 28, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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