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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM WHITE,

Case No.: 16cv2121 WQH (PCL)
Petitioner,

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ORDER:

v.
CYNTHIA TAMPKINS, Warden,

(1) GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS and

Respondent.

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(2) DISMISSING PETITION
WITHOUT PREJUDICE

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Petitioner, a state prisoner proceeding pro se, has submitted a Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma

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pauperis.

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MOTION TO PROCEED IN FORMA PAUPERIS

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Petitioner has no funds on account at the California correctional institution in

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which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the

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Court GRANTS Petitioner’s application to proceed in forma pauperis, and allows

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Petitioner to prosecute the above-referenced action as a poor person without being

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required to prepay fees or costs and without being required to post security. The Clerk of

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the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the

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filing fee.
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16cv2121 WQH (PCL)

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FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS

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The Petition must be dismissed, however, because this Court lacks subject matter

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jurisdiction. Petitioner raises only one claim in the Petition – that the trial court

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improperly imposed a restitution fine without sufficient evidence of his ability to pay.

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(See Pet. at 6.)

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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.

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28 U.S.C. § 2254(a) (emphasis added).
The requirement that a habeas petitioner be “in custody in violation of [federal

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law]” is “jurisdictional.” See Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010); cf.

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Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) (noting that 28 U.S.C. §

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2241(c)(3)s requirement that a habeas petitioner be “in custody in violation of the

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Constitution or laws or treaties of the United States” is jurisdictional). “The plain

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meaning of the text of § 2254(a) makes clear that physical custody alone is insufficient to

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confer jurisdiction.” See Bailey, 599 F.3d at 980. Rather, “[it] explicitly requires a nexus

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between the petitioner’s claim and the unlawful nature of the custody.” See id. (emphasis

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added) (citing Dickerson v. United States, 530 U.S. 428, 439 n. 3 (2000)). If the remedy

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sought is merely “the elimination or alteration” of a petitioners restitutionary obligation,

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then there is no such nexus between the habeas claim and the petitioners purportedly

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unlawful custody. See id. at 981; see also Washington v. Smith, 564 F.3d 1350, 1350-51

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(7th Cir. 2009) (holding that a petitioner did not satisfy the “in custody” requirement

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because, even if he prevailed on his ineffective assistance claim, “the only possible

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benefit [would] be a lower payment to his victim”) (quoted with approval in Bailey, 599

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F.3d at 981-82). In such a case, the action must be dismissed for lack of subject matter

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jurisdiction. See Bailey, 599 F.3d at 984.
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16cv2121 WQH (PCL)

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Here, Petitioner’s only claim challenges the restitution order. Even if Petitioner

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prevailed on this claim, he would not obtain early release from custody; instead, he would

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be entitled to only “the elimination or alteration of a money judgment.” See id. at 981.

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Thus, the “nexus” between these claims and illegal custody is lacking. See id. Put

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differently, the legal theories on which his claim relies are irrelevant – the only relevant

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consideration is whether his claims would impair the validity of the custodial sentence.

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See id. at 978, 984 (affirming dismissal of ineffective assistance claim for lack of subject

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matter jurisdiction); Washington, 564 F.3d at 1351. Because Petitioner’s claim does

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affect the legality of Petitioner’s confinement, this Court lacks subject matter jurisdiction

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over the action. See Bailey, 599 F.3d at 984.

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CONCLUSION

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For the reasons discussed above, the Court GRANTS the application to proceed in

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forma pauperis and DISMISSES the Petition without prejudice, for lack of subject matter

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jurisdiction.

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IT IS SO ORDERED.
Dated: August 30, 2016

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16cv2121 WQH (PCL)