Blandino v. Bare

Full title: KIM BLANDINO, Petitioner, v. JUDGE ROB BARE, et al., Respondents.

Court: UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Date published: Oct 12, 2017

2:17-cv-02379-APG-GWF (D. Nev. Oct. 12, 2017)

Opinion

2:17-cv-02379-APG-GWF

10-12-2017

KIM BLANDINO, Petitioner, v. JUDGE ROB BARE, et al., Respondents.

ORDER

Petitioner Blandino has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. With his petition, Blandino is challenging an order issued by a judge in the state district court for Clark County, Nevada, finding Blandino guilty of contempt of court and barring him from being within 25 feet of the judge's courtroom. Having reviewed the petition in accordance with Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254, this court concludes that it must dismiss this proceeding for lack of jurisdiction.

In order to obtain habeas relief under Section 2254, the petitioner must demonstrate that he is "in custody." 28 U.S.C. 2254(a). The "in custody" requirement is met when a petitioner "is subject to a significant restraint upon his liberty 'not shared by the public generally.'" Wilson v. Belleque, 554 F.3d 816, 822 (9th Cir.2009) (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)). The state court's order that Blandino not come with 25 feet of a particular state courtroom does not meet the requirement. See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) ("The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty."). And, while the order provides that Blandino could be incarcerated for failing to abide by the restriction, that does not change the result. See Dremann v. Francis, 828 F.2d 6, 7 (9^th Cir.1987) (holding that potential confinement for failure to pay a fine is considered too speculative to warrant federal habeas corpus protection). Because Blandino is not "in custody" as contemplated by 28 U.S.C. § 2254, this court lacks jurisdiction to grant him habeas relief.

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.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that petitioner's motion for an order requiring the Nevada Commission on Judicial Discipline to disclose information (ECF No. 3) is DENIED as moot.

DATED: October 12, 2017.

/s/_________

UNITED STATES DISTRICT JUDGE