Opinion
No. Civ. S-06-1113 LKK PAN P.
August 25, 2006
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 3, 2006, petitioner submitted an application to proceed in forma pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted.See 28 U.S.C. § 1915(a).
Petitioner seeks an order altering the amount of or ceasing restitution payments respondent deducts from his trust account. A judge "entertaining an application for a writ of habeas corpus shall forthwith 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 or person detained is not entitled thereto." 28 U.S.C. § 2243; Rule 4, Rules Governing Section 2254 Cases. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides, in relevant part, that "If it plainly appears from the petition that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition. . . ." By its terms, § 2254 is applicable only to a prisoner claiming the right to be released from custody on the basis that he or she is being imprisoned "in violation of the Constitution or laws or treaties of the United States." See United States v. Kramer, 195 F.3d 1129 (9th Cir. 1999). A petitioner may not use § 2254 solely to challenge a restitution order. (Id.) Petitioner's sole claim for habeas relief is based on a restitution fine and, therefore, petitioner has failed to specify appropriate grounds for relief in his petition. Accordingly, this action should be dismissed.
In accordance with the above, IT IS HEREBY ORDERED that petitioner's request to proceed in forma pauperis is granted;
IT IS HEREBY RECOMMENDED that this action be dismissed. See 28 U.S.C. § 2243; Rule 4, Rules Governing Section 2254 Cases.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).