ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1).
Petitioner has submitted a motion to proceed in forma pauperis. Because plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a), the request to proceed in forma pauperis will be granted.
Petitioner has also requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel.
Petitioner has moved for discovery. The parties in a habeas proceeding are not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a) of the Rules Governing Habeas Proceedings under § 2254 authorizes discovery only for good cause. The burden of showing the materiality of the discovery sought is on the party seeking it. Murphy v. Johnston, 205 F.3d 809, 813-15 (5th Cir. 2000). Moreover, a discovery request must be specific. Rule 6(b) states that "[a] party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents." Here, petitioner has not given the court good cause to order discovery, nor has he been specific by submitting any proposed discovery requests. Furthermore, the motion is premature: the court's ordinary practice in habeas cases is to consider a motion for discovery only after the court orders and receives an answer from the proper respondent. For all of these reasons, the motion for discovery will be denied.*fn1
II. Recommendation of Dismissal
In his amended habeas petition, petitioner complains about the restitution fine he was ordered to pay in conjunction with his sentence of two life terms plus sixty-five years' imprisonment. The petitioner only attacks the order to pay the restitution fine; he says nothing about the constitutionality of his conviction or term of incarceration. In general, a federal court cannot hear a habeas claim challenging a fine imposed by a state court because an action under 28 U.S.C. § 2254 can only concern the denial of a Constitutional right causing petitioner to be "in custody" or to have a longer sentence than he would if it were not for the violation. See Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998). Further, the Ninth Circuit has recently clarified that § 2254 does not confer jurisdiction over a challenge to a restitution order by a prisoner who is still in custody but does not attack the underlying conviction or duration of his physical confinement. The court explained:
[Petitioner's] challenge to the restitution order lacks any nexus, as required by the plain text of § 2254(a), to his custody. While [petitioner's] liberty has been severely restrained by his conviction and custodial sentence, the remedy [he] seeks, the elimination or alteration of a money judgment, does not directly impact -- and is not directed at the source of the restraint on -- his liberty. If successful, [petitioner] could reduce his liability for restitution but would still have to serve the rest of his custodial sentence in the same manner; his remedy would affect only the fact or quantity of the restitution that he has to pay the victim. ... That he is in physical custody while attacking the restitution order is insufficient to confer jurisdiction over his habeas petition.
Bailey v. Hill, ___ F.3d ___, 2010 WL 1133435 at *4 (9th Cir.). Bailey concerns a fine of restitution imposed under Oregon law, but the reasoning and conclusion of the Ninth Circuit's decision applies with equal force here: petitioner only attacks a fine of restitution imposed under the California law of victim indemnification in effect at the time of his conviction,*fn2 an order that "lacks any nexus, as required by § 2254, to his custody. ... That [petitioner] is in physical custody while attacking the restitution order is insufficient to confer jurisdiction over his habeas petition." Id.
Petitioner also complains of an additional, suspended fine of $10,000 that, according to the petition, will only go into effect "in the event I'm released and my parole is revoked." Id. at 13. This challenge is also barred by the rule affirmed in Bailey.
Finally, petitioner claims that his lawyer at trial rendered ineffective assistance of counsel by not objecting to or arguing against the amount of restitution he was ordered to pay.
In United States v. Thiele, 314 F.3d 399 (9th Cir. 2002), the Ninth Circuit summarily rejected a prisoner's attempt to couch his attack on a restitution order as a claim for ineffective assistance of counsel. Id. at 402. The petitioner in Thiele proceeded under 28 U.S.C. § 2255, but the Ninth Circuit's ruling in Bailey makes clear that the textual differences between § 2254 and § 2255 are, in the context of an attack on an order of restitution, "immaterial ... because an attack on a restitution order is not an attack on the execution of a custodial sentence." Bailey, 2010 WL 1133435 at *6. Bailey further found that § 2254 and § 2255 are "sufficiently analogous" that "Thiele and [United States v. Kramer, 195 F.3d 1129 (9th Cir. 1999)] support our conclusion that § 2254(a) does not confer jurisdiction over a challenge to a restitution order." Id. The analogy from § 2255 extends to the instant petition: Thiele's rejection of a claim for ineffective assistance of counsel as an ulterior vehicle for challenging an order of restitution applies with equal force in an action under § 2254.
This court can only entertain a petition for writ of habeas corpus on the ground that the petitioner is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Petitioner does not challenge the length or fact of his custody. Therefore, this action should be dismissed for lack of jurisdiction.
Petitioner also has filed a motion for sentence modification and a motion for modification for restitution (Docket Nos. 9 and 13), both of which repeat his attack on the state court's imposition of the restitution order. Both motions merely supplement the argument of the original petition and ...