Olivencia v. Yates
Filing
11
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 11/27/12. (Attachments: # 1 Certificate/Proof of Service)(nahS, COURT STAFF) (Filed on 11/27/2012)
1
2
3
UNITED STATES DISTRICT COURT
4
NORTHERN DISTRICT OF CALIFORNIA
5
OAKLAND DIVISION
6
7
BENNY OLIVENCIA,
Petitioner,
8
v.
9
YATES, Warden,
Respondent.
11
For the Northern District of California
United States District Court
10
No. C 12-3324 PJH (PR)
/
ORDER GRANTING LEAVE
TO PROCEED IN FORMA
PAUPERIS, DISMISSING
PETITION, AND DENYING
CERTIFICATE OF
APPEALABILITY
12
13
This is a habeas case filed by a state prisoner. On August 31, 2012, this case was
14
dismissed without prejudice as petitioner failed to file an application to proceed in forma
15
pauperis or pay the filing fee as directed by the court. On October 1, 2012, petitioner filed
16
an application to proceed in forma pauperis and the case was later reopened. The court
17
will now review the habeas petition. Petitioner was convicted in Santa Clara County, which
18
is in this district, so venue is proper here. See 28 U.S.C. § 2241(d).
19
BACKGROUND
20
21
Petitioner was convicted of second degree murder and sentenced to life in prison on
July 10, 1998.
DISCUSSION
22
23
24
A.
Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in
25
custody pursuant to the judgment of a State court only on the ground that he is in custody
26
in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §
27
2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet
28
heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An
1
application for a federal writ of habeas corpus filed by a prisoner who is in state custody
2
pursuant to a judgment of a state court must “specify all the grounds for relief available to
3
the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules
4
Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the
5
petition is expected to state facts that point to a ‘real possibility of constitutional error.’”
6
Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.
7
1970)). “Habeas petitions which appear on their face to be legally insufficient are subject
8
to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,
9
1108 (9th Cir. 1996) (Schroeder, J., concurring).
11
For the Northern District of California
United States District Court
10
B.
Legal Claims
Petitioner challenges only the $10,000 restitution fine imposed as part of his
12
sentence. The Ninth Circuit has recently held that the federal district courts do not have
13
habeas jurisdiction over such claims.
14
The term “in custody” appears twice in 28 U.S.C. § 2254(a), with two different
15
requirements. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). The first usage (i.e., that
16
the petition be filed “’in behalf of a person in custody’”) requires that there be a restraint on
17
the petitioner’s liberty. Id. at 978-79. The second usage (i.e., that the application can be
18
entertained “’only on the ground that he is in custody in violation of the Constitution or laws
19
or treaties of the United States”) requires “a nexus between the petitioner’s claim and the
20
unlawful nature of the custody.” Id. at 979-80. For the second requirement to be satisfied,
21
success on the claim must result in a change in the restraint on the petitioner’s liberty. See
22
id. at 980 (second custody requirement not satisfied for claim that counsel was ineffective
23
in not objecting to restitution order because success might cause money award to be set
24
aside but would not affect any restraint on petitioner’s liberty). That petitioner is subject to
25
a restitution requirement does not confer jurisdiction on a federal court to review such a
26
non-custodial aspect of the sentence. See id. at 981. Granting petitioner a writ of habeas
27
corpus on this claim would not result in a change in his liberty, but would only change his
28
obligation to pay the restitution.
2
1
CONCLUSION
2
1. Leave to proceed in forma pauperis (document number 9 on the docket) is
3
4
GRANTED.
2. The petition is DISMISSED for lack of jurisdiction. Furthermore, because
5
reasonable jurists would not find the result here debatable, a certificate of appealability
6
(“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for
7
COA). The clerk shall close the file.
8
IT IS SO ORDERED.
9
Dated: November 27, 2012.
PHYLLIS J. HAMILTON
United States District Judge
11
For the Northern District of California
United States District Court
10
12
13
G:\PRO-SE\PJH\HC.12\Olivencia3324.dsm2.wpd
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?