(HC) Allen v. Samuels ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE ALLEN, No. 1:23-cv-00503-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO 13 v. STATE A CLAIM1 14 D. SAMUELS, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. No. 1) 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 17 18 19 Petitioner Clarence Allen (“Petitioner”), a state prisoner, initiated this action by filling a 20 pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 on April 4, 2023. (Doc. No. 1, 21 “Petition”). This matter is now before the Court for preliminary review. See Rules Governing § 22 2254 Cases, Rule 4; 28 U.S.C. § 2243. For the reasons set forth below, the Court recommends 23 that the Petition be DISMISSED without prejudice for failure to state a cognizable habeas claim. 24 I. BACKGROUND 25 To the extent discernable, Petitioner challenges the order of restitution fine imposed by 26 the trial court. (See generally Doc. No. 1). Specifically, Petitioner argues that he does not have 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 the means to pay the restitution amount ordered by the trial court, and that the trial court exceeded 2 its authority by improperly determining the amount he was able to pay. (Id. at 2-21). As relief, 3 Petitioner asks the Court to “remand this petition for specific findings with regard to the 4 petitioner’s inability to pay the trial court’s ordered restitution.” (Id. at 21). 5 II. APPLICABLE LAW AND ANALYSIS 6 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 7 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 8 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 9 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 10 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 11 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 12 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 13 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 14 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 15 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 16 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 17 A. Failure to State a Cognizable Claim 18 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 19 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 20 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 21 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 22 that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). If a prisoner’s claim “would 23 necessarily demonstrate the invalidity of confinement or its duration,” a habeas petition is the 24 appropriate avenue for the claim. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); Nettles v. 25 Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (if a favorable judgment for the petitioner would not 26 “necessarily lead to his immediate or earlier release from confinement,” a habeas claim is not 27 appropriate). 28 Here, Petitioner does not challenge the fact or duration of his confinement, nor does he 1 seek an immediate or more expedient release from prison. Rather, the gravamen of the Petition 2 consists entirely of Petitioner’s assertion that the trial court improperly imposed a restitution fine 3 in excess of his ability to pay. (See generally Doc. No. 1). The Ninth Circuit has made clear that 4 § 2254 does not confer jurisdiction over a habeas petition raising an in-custody challenge to a 5 restitution order. See Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (noting the Ninth Circuit 6 has “repeatedly recognized that the imposition of a fine, by itself, is not sufficient to meet § 7 2254’s jurisdictional requirements”); Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir.1998) 8 (“[C]ourts hold that the imposition of a fine or the revocation of a license is merely a collateral 9 consequence of conviction, and does not meet the ‘in custody’ requirement.”)(gathering cases)); 10 Gutierrez v. Groves, 2017 WL 840655, at *62 (E.D. Cal. Mar. 3, 2017) (“Petitioner is not in 11 custody pursuant to a restitution fine; therefore, a challenge to the restitution fine has no effect on 12 Petitioner’s custody.”); Scott v. Compton Superior Court, 2020 WL 2797296, at *2 (C.D. Cal. 13 May 28, 2020) (“Petitioner’s claim challenging his restitution fine, however, does not ‘call into 14 question the lawfulness of the conviction or confinement[,]’ challenge the fact or duration of his 15 custody, or ‘seek[] immediate or speedier release.’ Petitioner’s claim, is therefore, not cognizable 16 under Section 2254. Because Petitioner’s challenge to his restitution fine is not cognizable via a 17 petition for writ of habeas corpus and it appears that no tenable claim for relief can be pleaded 18 were leave granted to file an amended petition, the undersigned recommends the petition be 19 dismissed. 20 III. CERTIFICATE OF APPEALABILITY 21 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 22 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 23 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 24 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 25 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 26 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 27 denies habeas relief on procedural grounds without reaching the merits of the underlying 28 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 1 | would find it debatable whether the petition states a valid claim of the denial of a constitutional 2 | right and that jurists of reason would find it debatable whether the district court was correct in its 3 | procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 4 | is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 5 could not conclude either that the district court erred in dismissing the petition or that the 6 || petitioner should be allowed to proceed further.” Jd. Here, reasonable jurists would not find the 7 | undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 8 | undersigned therefore recommends that a certificate of appealability not issue 9 Accordingly, it is ORDERED: 10 The Clerk of Court is directed shall assign this case to a district judge for the purposes of 11 || reviewing these findings and recommendations. 12 Further, it is RECOMMENDED: 13 1. The Petition (Doc. No. 1) be DISMISSED for failure to state a cognizable habeas 14 claim. 15 2. Petitioner be denied a certificate of appealability. 16 NOTICE TO PARTIES 17 These findings and recommendations will be submitted to the United States district judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 19 || days after being served with these findings and recommendations, a party may file written 20 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 21 | Findings and Recommendations.” Parties are advised that failure to file objections within the 22 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 23 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). | Dated: _ May 24, 2023 Mihaw. Wh. foareh fackte 25 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 27 28