The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION, WITHOUT PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY DISMISSING PETITION
Petitioner Jaime Acosta, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. Section 2254, seeking relief from a $5,000 restitution fine imposed in connection with his murder conviction. The petition was referred to United States Magistrate Judge Bernard G. Skomal for a report and recommendation pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.1(d). Respondents filed a motion to dismiss for lack of jurisdiction and Petitioner moved for leave to amend. On January 23, 2012, the Magistrate Judge issued a Report and Recommendation, recommending to grant Respondents' motion to dismiss and deny Petitioner's motion for leave to amend.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Petitioner objects to the Report and Recommendation.
Because Petitioner challenges solely the restitution portion of his state court judgment, the Court lacks jurisdiction to consider the petition under 28 U.S.C. Section 2254. Bailey v. Hill, 599 F.3d 976 (9th Cir. 2010). In his objections Petitioner argues the Court should construe his petition under 28 U.S.C. Section 2241 or grant leave to allege a claim under section 2241. However, when as here, a petitioner is in custody pursuant to a state court judgment, he can only proceed under section 2254. White v. Lambert, 370 F.3d 1002, 1004, 1006-10 (9th Cir. 2004), rev'd on other grounds, Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010).
Accordingly, Petitioner's objections are OVERRULED and the Report and Recommendation
is ADOPTED. Respondents' motion to dismiss is GRANTED and Petitioner's motion for leave to amend is DENIED. The petition is DISMISSED WITHOUT PREJUDICE. Certificate of appealability is DENIED.
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