Blandino v. Bare et al
ORDER that this action is DISMISSED for lack of subject matter jurisdiction. The Clerk shall enter judgment accordingly and close this case. FURTHER ORDERED that a certificate of appealability is DENIED. Petitioner's 3 Motion for an order requiring the Nevada Commission on Judicial Discipline to disclose information is Denied as moot. Signed by Judge Andrew P. Gordon on 10/12/2017. (Copies have been distributed pursuant to the NEF - SLD)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
JUDGE ROB BARE, et al.,
Petitioner Blandino has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF
No. 1. With his petition, Blandino is challenging an order issued by a judge in the state district court
for Clark County, Nevada, finding Blandino guilty of contempt of court and barring him from being
within 25 feet of the judge’s courtroom. Having reviewed the petition in accordance with Rule 4 of the
Rules Governing Habeas Corpus Cases Under Section 2254, this court concludes that it must dismiss
this proceeding for lack of jurisdiction.
In order to obtain habeas relief under Section 2254, the petitioner must demonstrate that he is
“in custody.” 28 U.S.C. 2254(a). The “in custody” requirement is met when a petitioner “is subject
to a significant restraint upon his liberty ‘not shared by the public generally.’” Wilson v. Belleque, 554
F.3d 816, 822 (9th Cir.2009) (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)). The state
court's order that Blandino not come with 25 feet of a particular state courtroom does not meet the
requirement. See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) (“The custody requirement
of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe
restraints on individual liberty.”). And, while the order provides that Blandino could be incarcerated
for failing to abide by the restriction, that does not change the result. See Dremann v. Francis, 828 F.2d
6, 7 (9th Cir.1987) (holding that potential confinement for failure to pay a fine is considered too
speculative to warrant federal habeas corpus protection). Because Blandino is not “in custody” as
contemplated by 28 U.S.C. § 2254, this court lacks jurisdiction to grant him habeas relief.
IT IS THEREFORE ORDERED that this action is DISMISSED for lack of subject matter
jurisdiction. The Clerk shall enter judgment accordingly and close this case.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for an order requiring the Nevada
Commission on Judicial Discipline to disclose information (ECF No. 3) is DENIED as moot.
DATED: October 12, 2017.
UNITED STATES DISTRICT JUDGE
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