Opinion
CASE NO. CV 15-6611-VAP (PJW)
09-10-2015
KENNETH WAYNE JOHNSON, Petitioner, v. NIEL MCDOWELL, WARDEN, Respondent.
ORDER DISMISSING HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY
Before the Court is a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging a June 2013 restitution order by the Los Angeles County Superior Court. (See Petition at 2, 6(11A).) Petitioner contends that: (1) he received ineffective assistance of counsel at the restitution hearing; (2) he received ineffective assistance of counsel in his appeal of the restitution order; (3) the trial court's imposition of restitution violated his federal due process rights; and (4) the trial court's restitution order was unauthorized under state law. (Petition at 4-6 and attached pages.) For the following reasons, the Petition is dismissed with prejudice.
The Court has a duty to screen habeas corpus petitions before ordering service on a respondent. See Mayle v. Felix, 545 U.S. 644, 656 (2005). In doing so, if it plainly appears from the face of a petition that a petitioner is not entitled to relief, the Court can dismiss the petition at the outset. See Rule 4, Rules Governing § 2254 Cases.
The Court lacks subject matter jurisdiction over the instant Petition. Habeas corpus attacks can only be directed at the legality of a conviction or the length of a sentence. See Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973); Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979). They cannot be used to challenge an order of restitution. See Bailey v. Hill, 599 F.3d 976, 982 (9th Cir. 2010) (affirming rejection on jurisdictional ground of ineffective assistance of counsel claim based on counsel's failure to challenge restitution order because restitution does not affect duration of custody). Because Petitioner challenges only the restitution order, the Petition is dismissed with prejudice.
In June 2011, Petitioner filed a habeas corpus petition, challenging his January 1996 convictions and resultant 37-years-to-life sentence for robbery and burglary. That petition was dismissed as untimely in May 2012. (Johnson v. Busby, CV 11-6008-VAP (PJW), May 8, 2012 Order.) It appears that the 2013 restitution order he seeks to challenge here stemmed from the 1996 convictions. --------
Further, because he has not made a substantial showing of the denial of a constitutional right or that the Court erred in its ruling, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED
DATED: September 10, 2015
/s/_________
VIRGINIA A. PHILLIPS
UNITED STATES DISTRICT JUDGE
Presented by: /s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE