Torres v. Kernan ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO TORRES, Case No. 20-cv-03159-PJH Plaintiff, 8 ORDER DISMISSING PETITION WITH 9 v. LEAVE TO AMEND 10 SCOTT KERNAN, Re: Dkt. No. 2 Defendant. 11 12 13 Petitioner, a former California prisoner, filed a pro se petition for a writ of habeas 14 corpus pursuant to 28 U.S.C. § 2254. His conviction occurred in Contra Costa County, 15 which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d). 16 BACKGROUND 17 Petitioner states that he pled guilty on February 5, 2015, and was resentenced on 18 October 3, 2018, without his knowledge or consent. Petition at 7. He states that during 19 the resentencing, restitution was imposed. Id. According to 2015 the written plea 20 agreement, petitioner initialed that he understood that conviction on the underlying 21 charge would require him to pay restitution. Id. at 20. Petitioner is no longer in custody. 22 Id. at 1. 23 DISCUSSION 24 STANDARD OF REVIEW 25 This court may entertain a petition for writ of habeas corpus “in behalf of a person 26 in custody pursuant to the judgment of a State court only on the ground that he is in 27 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 1 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 2 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 3 pursuant to a judgment of a state court must “specify all the grounds for relief available to 4 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 5 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 6 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 7 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 8 1970)). 9 LEGAL CLAIM 10 As grounds for federal habeas relief petitioner states that the order to pay 11 restitution violated his rights under the Fifth, Eighth and Fourteenth Amendments. 12 Section 2254(a) uses the term “in custody” twice, with two different requirements. 13 Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). The first usage (i.e., that the petition be 14 filed “ ‘in behalf of a person in custody’“) requires that there be a restraint on the 15 petitioner’s liberty. Id. at 978-79. The second usage (i.e., that the application may be 16 entertained “‘only on the ground that he is in custody in violation of the Constitution or 17 laws or treaties of the United States’“) requires “a nexus between the petitioner’s claim 18 and the unlawful nature of the custody.” Id. at 979-80. For the second requirement to be 19 satisfied, success on the claim must result in a change in the restraint on the petitioner’s 20 liberty. Id. at 980. 21 Petitioner’s claim, which only challenges the restitution component of his 22 sentence, fails to satisfy the second custody requirement because success on the claims 23 might cause the restitution fine to be set aside but would not affect any restraint on his 24 liberty. See id. at 980-81 (imprisoned petitioner failed to satisfy custody requirement for 25 his petition challenging only the restitution component of his sentence because the 26 “elimination or alteration of a money judgment, does not directly impact—and is not 27 directed at the source of the restraint on—his liberty” as long as he has to serve the rest 1 In this case petitioner is no longer incarcerated. If petitioner were not on parole, 2 then setting aside the restitution fine would have no bearing on his confinement as he is 3 already out of custody. Petitioner filed another case in this court concerning his parole 4 that discussed his parole conditions. See Torres v. Kernan, Case No. 19-6885 PJH. 5 Assuming petitioner is still on parole and even if this court were to set aside the restitution 6 fine, it would have no bearing on the other parole conditions he must abide by and their 7 restraint on his liberty. Id., Docket No. 1 at 22-25. 1 8 The petition is dismissed with leave to amend to provide more information in light 9 of the legal standards set forth above. In addition, petitioner agreed to pay restitution 10 fines when he pled guilty. He must also provide more information how now having to pay 11 restitution when he agreed to pay per the terms of the plea bargain sets forth a viable 12 federal claim. 13 CONCLUSION 14 1. The motion to proceed in forma pauperis (Docket No. 2) is GRANTED. 15 2. The petition is DISMISSED with leave to amend in accordance with the 16 standards set forth above. The amended petition must be filed no later than July 8, 17 2020, and carry the words AMENDED PETITION on the first page. Failure to amend 18 within the designated time will result in the dismissal of the petition. 19 3. Petitioner must keep the court informed of any change of address and must 20 comply with the court's orders in a timely fashion. Failure to do so may result in the 21 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 22 Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 23 41(b) applicable in habeas cases). 24 IT IS SO ORDERED. 25 Dated: June 9, 2020 26 27 1 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 2 United States District Judge 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27