White v. Tampkins

Filing 3

ORDER (1) Granting Application To Proceed In Forma Pauperis (Dkt # 2 ) And (2) Dismissing Petition Without Prejudice. Signed by Judge William Q. Hayes on 8/30/2016. (All non-registered users served via U.S. Mail Service.) (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM WHITE, Case No.: 16cv2121 WQH (PCL) Petitioner, 12 13 14 ORDER: v. CYNTHIA TAMPKINS, Warden, (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS and Respondent. 15 (2) DISMISSING PETITION WITHOUT PREJUDICE 16 17 18 Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 20 pauperis. 21 MOTION TO PROCEED IN FORMA PAUPERIS 22 Petitioner has no funds on account at the California correctional institution in 23 which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the 24 Court GRANTS Petitioner’s application to proceed in forma pauperis, and allows 25 Petitioner to prosecute the above-referenced action as a poor person without being 26 required to prepay fees or costs and without being required to post security. The Clerk of 27 the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the 28 filing fee. 1 16cv2121 WQH (PCL) 1 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 2 The Petition must be dismissed, however, because this Court lacks subject matter 3 jurisdiction. Petitioner raises only one claim in the Petition – that the trial court 4 improperly imposed a restitution fine without sufficient evidence of his ability to pay. 5 (See Pet. at 6.) 6 7 8 9 Title 28 U.S.C. § 2254(a) provides that: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 10 11 12 28 U.S.C. § 2254(a) (emphasis added). The requirement that a habeas petitioner be “in custody in violation of [federal 13 law]” is “jurisdictional.” See Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010); cf. 14 Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) (noting that 28 U.S.C. § 15 2241(c)(3)s requirement that a habeas petitioner be “in custody in violation of the 16 Constitution or laws or treaties of the United States” is jurisdictional). “The plain 17 meaning of the text of § 2254(a) makes clear that physical custody alone is insufficient to 18 confer jurisdiction.” See Bailey, 599 F.3d at 980. Rather, “[it] explicitly requires a nexus 19 between the petitioner’s claim and the unlawful nature of the custody.” See id. (emphasis 20 added) (citing Dickerson v. United States, 530 U.S. 428, 439 n. 3 (2000)). If the remedy 21 sought is merely “the elimination or alteration” of a petitioners restitutionary obligation, 22 then there is no such nexus between the habeas claim and the petitioners purportedly 23 unlawful custody. See id. at 981; see also Washington v. Smith, 564 F.3d 1350, 1350-51 24 (7th Cir. 2009) (holding that a petitioner did not satisfy the “in custody” requirement 25 because, even if he prevailed on his ineffective assistance claim, “the only possible 26 benefit [would] be a lower payment to his victim”) (quoted with approval in Bailey, 599 27 F.3d at 981-82). In such a case, the action must be dismissed for lack of subject matter 28 jurisdiction. See Bailey, 599 F.3d at 984. 2 16cv2121 WQH (PCL) 1 Here, Petitioner’s only claim challenges the restitution order. Even if Petitioner 2 prevailed on this claim, he would not obtain early release from custody; instead, he would 3 be entitled to only “the elimination or alteration of a money judgment.” See id. at 981. 4 Thus, the “nexus” between these claims and illegal custody is lacking. See id. Put 5 differently, the legal theories on which his claim relies are irrelevant – the only relevant 6 consideration is whether his claims would impair the validity of the custodial sentence. 7 See id. at 978, 984 (affirming dismissal of ineffective assistance claim for lack of subject 8 matter jurisdiction); Washington, 564 F.3d at 1351. Because Petitioner’s claim does 9 affect the legality of Petitioner’s confinement, this Court lacks subject matter jurisdiction 10 over the action. See Bailey, 599 F.3d at 984. 11 CONCLUSION 12 For the reasons discussed above, the Court GRANTS the application to proceed in 13 forma pauperis and DISMISSES the Petition without prejudice, for lack of subject matter 14 jurisdiction. 15 16 IT IS SO ORDERED. Dated: August 30, 2016 17 18 19 20 21 22 23 24 25 26 27 28 3 16cv2121 WQH (PCL)

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