Blandino v. Bare et al

Filing 4

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)

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1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 9 10 11 KIM BLANDINO, Petitioner, 2:17-cv-02379-APG-GWF vs. 12 JUDGE ROB BARE, et al., 13 ORDER Respondents. 14 15 Petitioner Blandino has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF 16 No. 1. With his petition, Blandino is challenging an order issued by a judge in the state district court 17 for Clark County, Nevada, finding Blandino guilty of contempt of court and barring him from being 18 within 25 feet of the judge’s courtroom. Having reviewed the petition in accordance with Rule 4 of the 19 Rules Governing Habeas Corpus Cases Under Section 2254, this court concludes that it must dismiss 20 this proceeding for lack of jurisdiction. 21 In order to obtain habeas relief under Section 2254, the petitioner must demonstrate that he is 22 “in custody.” 28 U.S.C. 2254(a). The “in custody” requirement is met when a petitioner “is subject 23 to a significant restraint upon his liberty ‘not shared by the public generally.’” Wilson v. Belleque, 554 24 F.3d 816, 822 (9th Cir.2009) (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)). The state 25 court's order that Blandino not come with 25 feet of a particular state courtroom does not meet the 26 requirement. See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) (“The custody requirement 27 of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe 28 restraints on individual liberty.”). And, while the order provides that Blandino could be incarcerated 1 for failing to abide by the restriction, that does not change the result. See Dremann v. Francis, 828 F.2d 2 6, 7 (9th Cir.1987) (holding that potential confinement for failure to pay a fine is considered too 3 speculative to warrant federal habeas corpus protection). Because Blandino is not “in custody” as 4 contemplated by 28 U.S.C. § 2254, this court lacks jurisdiction to grant him habeas relief. 5 6 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. 7 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 8 IT IS FURTHER ORDERED that petitioner’s motion for an order requiring the Nevada 9 10 Commission on Judicial Discipline to disclose information (ECF No. 3) is DENIED as moot. DATED: October 12, 2017. 11 12 13 __________________________________ UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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