Opinion
22-cv-01497-WQH-RBB
10-24-2022
RICHARD DAVID WELSH, JR., Petitioner, v. C. CATES, Warden, Respondent.
ORDER: (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND (2) DISMISSING PETITION WITHOUT PREJUDICE
Hon. William Q. Hayes United States District Court Judge
On September 29, 2022, Petitioner, a state prisoner proceeding pro se, submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On October 6, 2022, the Court dismissed the case without prejudice because Petitioner failed to satisfy the filing fee requirement. (ECF No. 2.) In its Order, the Court notified Petitioner that in order to have his case reopened he must either pay the filing fee or provide adequate proof of his inability to pay no later than November 18, 2022. Id. On October 17, 2022, Petitioner filed a Motion to Proceed In Form Pauperis. (ECF No. 3.)
REQUEST TO PROCEED IN FORMA PAUPERIS
According to Petitioner's trust account statement, Petitioner has only $3.54 on account at the correctional institution in which he is confined. (See ECF No. 3 at 6.) Because Petitioner has insufficient funds to pay the $5.00 filing fee, the Court GRANTS Petitioner's application to proceed in forma pauperis and allows Petitioner to prosecute the above-referenced action without being required to prepay fees or costs and without being required to post security. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee.
FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS
The Petition must be dismissed, however, because this Court lacks subject matter jurisdiction. The only claims raised in the Petition relate to the imposition of a restitution fine. Petitioner argues the fine is excessive and should be reduced. (ECF No. 1 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); cf. 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. (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 claim challenges the amount of his restitution order. Even if Petitioner prevailed on these claims, he would not obtain early release from custody; instead, he would be entitled to only “the elimination or alteration of a money judgment” (and perhaps the return of funds already paid). See Bailey, 599 F.3d at 981. Thus, the “nexus” between these claims and illegal custody is lacking. See id. Put another way, the legal theories on which his claims rely are irrelevant - the only relevant consideration is whether his claims would impair the validity of the custodial sentence. Id. at 978, 984 (affirming dismissal of ineffective assistance claim for lack of subject matter jurisdiction); Washington, 564 F.3d at 1351. Because these claims do not affect the legality of Petitioner's 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 GRANTS the application to proceed in forma pauperis (ECF No. 3) and DISMISSES the Petition without prejudice, for lack of subject matter jurisdiction.
IT IS SO ORDERED.