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