Shannon Cortney Nevels v. Warden Ken Clark ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHANNON CORTNEY NEVELS, 11 Case No. 21-01301 BLF (PR) Petitioner, 12 ORDER OF DISMISSAL; DENYING v. CERTIFICATE OF 13 APPEALABILITY 14 KEN CLARK, 15 Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, seeking to vacate, modify, or strike his restitution 20 pursuant to a new state bill. Dkt. No. 1. The matter was transferred to this district and 21 assigned to the Honorable Magistrate Judge Robert M. Illman. Dkt. No. 4. Judge Illman 22 dismissed the action with leave to amend for Petitioner to address several deficiencies in 23 the petition. Dkt. No. 8. Petitioner filed an amended petition. Dkt. No. 13. The matter 24 was then reassigned to the Undersigned. Dkts. No. 15, 16. 25 26 BACKGROUND 27 According to the amended petition, Petitioner was convicted in Alameda County 1 sentenced to 21 years to sate prison. Dkt. No. 13 at 2. Petitioner seeks to strike the 2 restitution imposed pursuant to a new state legislation, “Senate Bill 824 & Assembly Bill 3 1869,” and based on his inability to pay under state law. Id. at 3-4. 4 For the reasons discussed below, this action must be dismissed. 5 6 DISCUSSION 7 A. Custody 8 This court may entertain a petition for a writ of habeas corpus “in behalf of a person 9 in custody pursuant to the judgment of a State court only on the ground that he is in 10 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 11 § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause why the writ should not be granted unless it appears from the application that the applicant 12 or person detained is not entitled thereto.” Id. § 2243. 13 Section 2254(a) uses the term “in custody” twice, with two different requirements. 14 Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). The first usage (i.e., that the petition be 15 filed “‘in behalf of a person in custody’”) requires that there be a restraint on the 16 petitioner’s liberty. Id. at 978-79. The second usage (i.e., that the application can be 17 entertained “‘only on the ground that he is in custody in violation of the Constitution or 18 laws or treaties of the United States’”) requires “a nexus between the petitioner’s claim and 19 the unlawful nature of the custody.” Id. at 979-80. For the second requirement to be 20 satisfied, success on the claim must result in a change in the restraint on the petitioner’s 21 liberty. See id. at 980 (second custody requirement not satisfied for claim that counsel was 22 ineffective in not objecting to restitution order because success might cause money award 23 to be set aside but would not affect any restraint on petitioner’s liberty). 24 In screening the original petition, Judge Illman advised Petitioner that the challenge 25 to the restitution component of his sentence “fails to satisfy the second custody 26 requirement because success on the claim might cause the restitution fine to be set aside 27 but would not affect any restraint on his liberty.” Dkt. No. 8 at 2, citing Bailey, 599 F.3d 1 at 980-81 (imprisoned petitioner failed to satisfy custody requirement for his petition 2 challenging only the restitution component of his sentence because the “elimination or 3 alteration of a money judgment, does not directly impact – and is not directed at the source 4 of the restraint on – his liberty” as long as he has to serve the rest of his prison sentence in 5 the same manner). Petitioner has presented the same restitution claim from his original 6 petition in the instant amended petition. As he was already advised, Petitioner cannot 7 proceed with this claim. 8 Because Petitioner fails to satisfy the “in custody” requirement, there is no habeas 9 jurisdiction present over this matter. The instant petition must be dismissed for lack of 10 jurisdiction. See 28 U.S.C. §§ 2241(c), 2254(a). 11 B. Timeliness and Exhaustion 12 Petitioner was also advised that the action appeared untimely because it was filed 13 many years after the expiration of the one-year statute of limitations following his 2014 14 conviction. Dkt. No. 8 at 2-3; see 28 U.S.C. § 2244(d)(1). The petition also appeared to 15 be unexhausted because Petitioner did not present the highest state court available with a 16 fair opportunity to rule on the merits of each and every claim he sought to raise in federal 17 court; he petition indicated that he only filed a state habeas petition with the Superior 18 Court of Alameda County. Id.; see 28 U.S.C. § 2244(b),(c); Rose v. Lundy, 455 U.S. 509, 19 515-16 (1982). Petitioner was directed to address these deficiencies in an amended 20 petition. Dkt. No. 8 at 3. Petitioner has failed to address either of these issues in the 21 amended petition. Dkt. No. 13. Accordingly, it appears that the action is subject to 22 dismissal as untimely and unexhausted. 23 24 CONCLUSION 25 For the foregoing reasons, this habeas action is DISMISSED for lack of 26 jurisdiction, as well as for being untimely and unexhausted. 27 No certificate of appealability is warranted in this case because a reasonable jurist 1 U.S. 473, 484 (2000). 2 IT IS SO ORDERED. 3 || Dated: September 20, 2021 hk aM bw ) puss BETH LABSON FREEMAN 4 United States District Judge 5 6 7 8 9 10 11 12 13 14 15 A 16 17 © 18 19 20 21 22 23 24 25 PAPRO-SEXBLELICA 1\01301Nevels_dism(custody) 26 27 28