Britt v. Gonzalez
Filing
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ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY by Judge Phyllis J. Hamilton granting 2 Motion for Leave to Proceed in forma pauperis; finding as moot 3 Motion (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 5/25/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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KARL D. BRITT,
Petitioner,
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v.
TERRIE L. GONZALEZ, Warden,
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For the Northern District of California
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United States District Court
No. C 12-2160 PJH (PR)
Respondent.
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ORDER GRANTING LEAVE
TO PROCEED IN FORMA
PAUPERIS, DISMISSING
PETITION, AND DENYING
CERTIFICATE OF
APPEALABILITY
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This case was opened when petitioner, a prisoner at the California Men’s Colony,
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filed a petition for a writ of habeas corpus directed to a judgment of the California Superior
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Court for Sonoma County. He contends that the court improperly imposed a restitution
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obligation upon him without determining whether there was any realistic possibility of his
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paying it. The court does not, however, have jurisdiction over a “state prisoner’s in-custody
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challenge to a restitution order imposed as part of a criminal sentence.” See Bailey v. Hill,
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599 F.3d 976, 982 (9th Cir. 2010) (state prisoner’s claim regarding restitution order is not
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claim that prisoner is in custody “in violation of the Constitution or laws or treaties of the
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United States,” as required by 28 U.S.C. § 2254(a) for habeas jurisdiction).
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In an appropriate case a habeas petition may be construed as a Section 1983
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complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the court may
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construe a habeas petition as a civil rights action, it is not required to do so. Since the time
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the Wilwording case was decided there have been significant changes in the law. For
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instance, the filing fee for a habeas petition is five dollars, and if leave to proceed in forma
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pauperis is granted, the fee is forgiven. For civil rights cases, however, the fee is now $350
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and under the Prisoner Litigation Reform Act the prisoner is required to pay it, even if
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granted in forma pauperis status, by way of deductions from income to the prisoner’s trust
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account. See 28 U.S.C. 1915(b)(1). A prisoner who might be willing to file a habeas
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petition for which he or she would not have to pay a filing fee might feel otherwise about a
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civil rights complaint for which the $350 fee would be deducted from income to his or her
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prisoner account. Also, a civil rights complaint which is dismissed as malicious, frivolous,
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or for failure to state a claim would count as a “strike” under 28 U.S.C. § 1915(g), which is
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not true for habeas cases.
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In view of these potential pitfalls for petitioner if the court were to construe the
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petition as a civil rights complaint, the case will be dismissed without prejudice to his filing a
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For the Northern District of California
United States District Court
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civil rights action if he wishes to do so in light of the above.
Petitioner’s motion for leave to proceed in forma pauperis (document number 2 on
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the docket) is GRANTED. This case is DISMISSED. Petitioner’s motion for modification of
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the sentence (document 3) is DENIED as moot.
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Because reasonable jurists would not find the result here debatable, a certificate of
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appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)
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(standard for COA). The clerk shall close the file.
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IT IS SO ORDERED.
Dated: May 25, 2012.
PHYLLIS J. HAMILTON
United States District Judge
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G:\PRO-SE\PJH\HC.12\britt2160.dsm.wpd
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