Bank v. Winner

Filing 4

ORDER that the petition for writ of habeas corpus (ECF No. 1 ) is DISMISSED for lack of jurisdiction. The Clerk shall enter judgment accordingly. FURTHER ORDERED that the petitioner is denied a certificate of appealability. Signed by Judge Richard F. Boulware, II on 3/22/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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STEVEN J. BANK,

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Petitioner,
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vs.
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ELLWORTH WINNER,
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Respondent.
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____________________________________/

Case no. 2:17-cv-00691-RFB-NJK
ORDER

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This case is a petition for a writ of habeas corpus under 28 U.S.C. § 2241. With his petition,

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Bank seeks to challenge the issuance of a traffic citation and the municipal court’s denial of his

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motion to dismiss.

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The court has reviewed Bank’s petition pursuant to 28 U.S.C. § 2243. The federal courts

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have jurisdiction to issue a writ of habeas corpus to someone who “is in custody in violation of the

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Constitution or laws or treaties of the United States. . . .” 28 U.S.C. § 2241(c)(3). The “in custody”

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requirement is jurisdictional. Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam).

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Bank does not allege facts establishing that can meet the “in custody” requirement. In

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general, courts hold that the imposition of a fine does not suffice. Bailey v. Hill, 599 F.3d 976, 979

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(9th Cir. 2010); Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998); Dremann v. Francis,

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828 F.2d 6, 7 (9th Cir. 1987). Bank does not otherwise state or suggest how his liberty being

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restrained in a manner for him to be considered “in custody.” Thus, this court lacks jurisdiction to

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grant habeas relief.

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IT IS THEREFORE ORDERED that the petition for writ of habeas corpus (ECF No. 1) is
DISMISSED for lack of jurisdiction. The Clerk shall enter judgment accordingly.

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IT IS FURTHER ORDERED that the petitioner is denied a certificate of appealability.

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DATED this 22nd day of March, 2017.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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