Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Otis D. Wright, II, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On October 22, 2015, Petitioner, a state prisoner, filed a "Petition for Writ of Habeas Corpus." It plainly appears from the face of the Petition that this Court lacks jurisdiction to grant habeas relief to Petitioner. Therefore, the Petition should be denied and dismissed without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
DISCUSSION
Petitioner seeks to challenge a "restitution fine" imposed as part of his Superior Court sentence. This federal Court lacks jurisdiction to entertain the challenge.
Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(a)'s "in custody" requirement is jurisdictional. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) (citation omitted). Physical custody alone is insufficient to confer habeas jurisdiction. Id. at 980. Rather, there must be a nexus between the petitioner's claim and the allegedly unlawful nature of the custody. Id . A federal habeas court lacks jurisdiction over a challenge to the non-custodial component(s) of a sentence. Id . Accordingly, section 2254(a) "does not confer jurisdiction over a state prisoner's in-custody challenge to a restitution order imposed as part of a criminal sentence." Id. at 982; see also Rodriguez v. Cate, 475 Fed.App'x 679 (9th Cir. 2012) (California state prisoner's habeas challenge to restitution order properly dismissed for lack of jurisdiction); Lua v. Unknown, 2012 WL 4364307, at *1 (C.D. Cal. June 4, 2012), adopted, 2012 WL 4364301 (C.D. Cal. Sept. 21, 2012) ("a restitution fine does not challenge a petitioner's custody, ' and is therefore insufficient to confer federal habeas jurisdiction"). Therefore, the Petition should be denied and dismissed without prejudice for lack of jurisdiction.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.
In light of this recommended disposition, Petitioner's requests for the appointment of counsel and an evidentiary hearing are denied.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.