Soto v. People of the State of California

Filing 6

ORDER RE-OPENING CASE; GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; ORDER OF DISMISSAL re 5 Received Document filed by Miguel Soto. Signed by Judge Lucy H. Koh on 11/6/12. (Attachments: # 1 cert of service)(mpb, COURT STAFF) (Filed on 11/7/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MIGUEL SOTO,

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Petitioner,
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vs.
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PEOPLE OF THE STATE OF
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CALIFORNIA,
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Respondent.
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____________________________________)

No. C 12-4194 LHK (PR)
ORDER RE-OPENING CASE;
GRANTING APPLICATION TO
PROCEED IN FORMA
PAUPERIS; ORDER OF
DISMISSAL

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On August 9, 2012, Petitioner, a California state prisoner, filed this pro se petition,
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pursuant to 28 U.S.C. § 2254. That same day, the Clerk notified Petitioner that, within thirty
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days, he was required to either pay the filing fee or a completed application to proceed in forma
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pauperis. On September 20, 2012, after receiving no response from Petitioner, the Court
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dismissed this action. On October, 3, 2012, Petitioner filed an application to proceed in forma
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pauperis. The Court construes this application as a motion to re-open, as well as an application
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to proceed in forma pauperis. So construed, the motion to re-open is GRANTED. The Clerk
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shall vacate the judgment, and RE-OPEN this case. Plaintiff’s application to proceed in forma
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pauperis is GRANTED.
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For the reasons that follow, however, the Court DISMISSES this case.
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Order Granting Motion to Re-Open; Granting Application to Proceed In Forma Pauperis; Order of Dismissal
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DISCUSSION
I.

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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 in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975).

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A district court shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

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II.

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Analysis
Petitioner argues that the trial court violated his rights by imposing restitution before

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considering whether Petitioner had any ability to pay it. However, because this claim does not

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go to the fact or length of Petitioner’s incarceration, it is not a proper ground for federal habeas

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relief.

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The federal habeas statute does not provide jurisdiction over a claim challenging a

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restitution order, even when the petitioner is incarcerated. Bailey v. Hill, 599 F.3d 976, 980 (9th

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Cir. 2010). In Bailey, the petitioner pleaded guilty and was ordered to pay restitution. He filed a

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section 2254 petition alleging that his counsel provided ineffective assistance by not objecting to

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the restitution order. The Ninth Circuit affirmed the dismissal of the petition on the ground that

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the petitioner did not meet section 2254’s “in custody” requirement for jurisdiction. Id. The

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Ninth Circuit concluded that section 2254 does not confer jurisdiction over a state prisoner’s

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in-custody challenge to the non-custodial portion of his criminal sentence, such as a restitution

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order. Id. at 981.

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Here, Petitioner challenges only the restitution fine imposed. Petitioner does not allege

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that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254. Petitioner does not claim that his custody or conviction is unlawful. Thus, this

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Court lacks jurisdiction to consider Petitioner’s challenge to the restitution order imposed by the

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trial court.
Order Granting Motion to Re-Open; Granting Application to Proceed In Forma Pauperis; Order of Dismissal
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CONCLUSION
The instant habeas petition is DISMISSED. The federal rules governing habeas cases

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brought by state prisoners require a district court that denies a habeas petition to grant or deny a

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certificate of appealability (“COA”) in its ruling. See Rule 11(a), Rules Governing § 2254

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Cases, 28 U.S.C. foll. § 2254. Petitioner has not shown “that jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.

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The clerk shall terminate any pending motions and close the file.

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IT IS SO ORDERED.

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11/6/12
DATED: _______________
LUCY H. KOH
United States District Judge

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Order Granting Motion to Re-Open; Granting Application to Proceed In Forma Pauperis; Order of Dismissal
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