Opinion
Case No. 20-CV-735 JLS (BGS)
04-22-2020
RICHARD DE'VONN WEBB Petitioner, v. WARREN MONTGOMERY, Respondent.
ORDER DISMISSING WITHOUT PREJUDICE PETITION
Petitioner Richard De'Vonn Webb, a state prisoner proceeding pro se, has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Pet.," ECF No. 1). For the following reasons, the Court DISMISSES WITHOUT PREJUDICE the Petition.
ANALYSIS
I. Failure to Satisfy Filing Fee Requirement
A Petition for Writ of Habeas Corpus must either be accompanied by a $5.00 filing fee or an application to proceed in forma pauperis. See S.D. Cal. CivLR 3(a); 28 U.S.C. foll. § 2254. Petitioner has not paid the $5.00 filing fee and has not filed a motion to proceed in forma pauperis. If Petitioner wishes to proceed, he must either pay the $5.00 fee or submit adequate proof he cannot pay the fee. / / / / / /
II. Failure to State a Cognizable Claim on Federal Habeas
The Petition also must be dismissed because this Court lacks subject-matter jurisdiction. Petitioner raises only one claim in the Petition—that the trial court improperly imposed a restitution fine without sufficient evidence of his ability to pay. See Pet. at 3. Title 28 U.S.C. § 2254(a) provides that:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a) (emphasis added).
The requirement that a habeas petitioner be "in custody in violation of [federal law]" is "jurisdictional." See Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010); see also Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) (noting that 28 U.S.C. § 2241(c)(3)'s requirement that a habeas petitioner be "in custody in violation of the Constitution or laws or treaties of the United States" is jurisdictional). "The plain meaning of the text of § 2254(a) makes clear that physical custody alone is insufficient to confer jurisdiction." See Bailey, 599 F.3d at 980. Rather, "[it] explicitly requires a nexus between the petitioner's claim and the unlawful nature of the custody." See id. (emphasis added) (citing Dickerson v. United States, 530 U.S. 428, 439 n. 3 (2000)). If the remedy sought is merely "the elimination or alteration" of a petitioner's restitutionary obligation, then there is no such nexus between the habeas claim and the petitioner's purportedly unlawful custody. See id. at 981; see also Washington v. Smith, 564 F.3d 1350, 1350-51 (7th Cir. 2009) (holding that a petitioner did not satisfy the "in custody" requirement because, even if he prevailed on his ineffective assistance claim, "the only possible benefit [would] be a lower payment to his victim"), quoted with approval in Bailey, 599 F.3d at 981-82. In such a case, the action must be dismissed for lack of subject-matter jurisdiction. See Bailey, 599 F.3d at 984. / / /
Here, Petitioner's only claim challenges the restitution order. Even if Petitioner were to prevail on this claim, he would not obtain early release from custody; instead, he would be entitled only to "the elimination or alteration of a money judgment." See id. at 981. Consequently, the "nexus" between these claims and illegal custody is lacking. See id. Because Petitioner's claim does not affect the legality of his confinement, this Court lacks subject-matter jurisdiction over the action. See Bailey, 599 F.3d at 984.
CONCLUSION
For the reasons discussed above, the Court DISMISSES WITHOUT PREJUDICE the Petition for failure to satisfy the filing fee requirement and for lack of subject-matter jurisdiction. Should Plaintiff wish to reopen this action, he MUST SUBMIT on or before June 24, 2020, (1) an amended petition remedying the jurisdictional defects identified above, and (2) either (a) a copy of this Order along with the requisite $5.00 filing fee, or (b) a motion to proceed in forma pauperis.
IT IS SO ORDERED. Dated: April 22, 2020
/s/_________
Hon. Janis L. Sammartino
United States District Judge