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)

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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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BENNY OLIVENCIA,
Petitioner,

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v.

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YATES, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 12-3324 PJH (PR)

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ORDER GRANTING LEAVE
TO PROCEED IN FORMA
PAUPERIS, DISMISSING
PETITION, AND DENYING
CERTIFICATE OF
APPEALABILITY

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This is a habeas case filed by a state prisoner. On August 31, 2012, this case was

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dismissed without prejudice as petitioner failed to file an application to proceed in forma

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pauperis or pay the filing fee as directed by the court. On October 1, 2012, petitioner filed

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an application to proceed in forma pauperis and the case was later reopened. The court

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will now review the habeas petition. Petitioner was convicted in Santa Clara County, which

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is in this district, so venue is proper here. See 28 U.S.C. § 2241(d).

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BACKGROUND

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Petitioner was convicted of second degree murder and sentenced to life in prison on
July 10, 1998.
DISCUSSION

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A.

Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject

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to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,

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1108 (9th Cir. 1996) (Schroeder, J., concurring).

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For the Northern District of California

United States District Court

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B.

Legal Claims
Petitioner challenges only the $10,000 restitution fine imposed as part of his

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sentence. The Ninth Circuit has recently held that the federal district courts do not have

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habeas jurisdiction over such claims.

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The term “in custody” appears twice in 28 U.S.C. § 2254(a), with two different

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requirements. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). The first usage (i.e., that

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the petition be filed “’in behalf of a person in custody’”) requires that there be a restraint on

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the petitioner’s liberty. Id. at 978-79. The second usage (i.e., that the application can be

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entertained “’only on the ground that he is in custody in violation of the Constitution or laws

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or treaties of the United States”) requires “a nexus between the petitioner’s claim and the

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unlawful nature of the custody.” Id. at 979-80. For the second requirement to be satisfied,

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success on the claim must result in a change in the restraint on the petitioner’s liberty. See

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id. at 980 (second custody requirement not satisfied for claim that counsel was ineffective

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in not objecting to restitution order because success might cause money award to be set

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aside but would not affect any restraint on petitioner’s liberty). That petitioner is subject to

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a restitution requirement does not confer jurisdiction on a federal court to review such a

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non-custodial aspect of the sentence. See id. at 981. Granting petitioner a writ of habeas

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corpus on this claim would not result in a change in his liberty, but would only change his

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obligation to pay the restitution.
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CONCLUSION

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1. Leave to proceed in forma pauperis (document number 9 on the docket) is

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GRANTED.
2. The petition is DISMISSED for lack of jurisdiction. Furthermore, because

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reasonable jurists would not find the result here debatable, a certificate of appealability

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(“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for

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COA). The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: November 27, 2012.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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G:\PRO-SE\PJH\HC.12\Olivencia3324.dsm2.wpd

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