Britt v. Gonzalez

Filing 4

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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 KARL D. BRITT, Petitioner, 8 9 v. TERRIE L. GONZALEZ, Warden, 11 For the Northern District of California 10 United States District Court No. C 12-2160 PJH (PR) Respondent. / ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY 12 13 This case was opened when petitioner, a prisoner at the California Men’s Colony, 14 filed a petition for a writ of habeas corpus directed to a judgment of the California Superior 15 Court for Sonoma County. He contends that the court improperly imposed a restitution 16 obligation upon him without determining whether there was any realistic possibility of his 17 paying it. The court does not, however, have jurisdiction over a “state prisoner’s in-custody 18 challenge to a restitution order imposed as part of a criminal sentence.” See Bailey v. Hill, 19 599 F.3d 976, 982 (9th Cir. 2010) (state prisoner’s claim regarding restitution order is not 20 claim that prisoner is in custody “in violation of the Constitution or laws or treaties of the 21 United States,” as required by 28 U.S.C. § 2254(a) for habeas jurisdiction). 22 In an appropriate case a habeas petition may be construed as a Section 1983 23 complaint. Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the court may 24 construe a habeas petition as a civil rights action, it is not required to do so. Since the time 25 the Wilwording case was decided there have been significant changes in the law. For 26 instance, the filing fee for a habeas petition is five dollars, and if leave to proceed in forma 27 pauperis is granted, the fee is forgiven. For civil rights cases, however, the fee is now $350 28 and under the Prisoner Litigation Reform Act the prisoner is required to pay it, even if 1 granted in forma pauperis status, by way of deductions from income to the prisoner’s trust 2 account. See 28 U.S.C. 1915(b)(1). A prisoner who might be willing to file a habeas 3 petition for which he or she would not have to pay a filing fee might feel otherwise about a 4 civil rights complaint for which the $350 fee would be deducted from income to his or her 5 prisoner account. Also, a civil rights complaint which is dismissed as malicious, frivolous, 6 or for failure to state a claim would count as a “strike” under 28 U.S.C. § 1915(g), which is 7 not true for habeas cases. 8 In view of these potential pitfalls for petitioner if the court were to construe the 9 petition as a civil rights complaint, the case will be dismissed without prejudice to his filing a 11 For the Northern District of California United States District Court 10 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 12 the docket) is GRANTED. This case is DISMISSED. Petitioner’s motion for modification of 13 the sentence (document 3) is DENIED as moot. 14 Because reasonable jurists would not find the result here debatable, a certificate of 15 appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) 16 (standard for COA). The clerk shall close the file. 17 18 IT IS SO ORDERED. Dated: May 25, 2012. PHYLLIS J. HAMILTON United States District Judge 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\PJH\HC.12\britt2160.dsm.wpd 2

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