The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel and in forma pauperis. Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's sole claim is that the 1996 criminal restitution order is exorbitant and was issued without benefit of a hearing to determine whether petitioner had the ability to pay more than the $200.00 minimum fine. (Dkt. No. 1 at 5.) Respondent filed a motion to dismiss this action because the petition is successive, petitioner's challenge to the restitution order fails to meet the "in custody" requirement of 28 U.S.C. § 2254(A), and the petition is untimely. Petitioner filed an opposition, and respondent filed a reply.*fn1 For the reasons set forth below, the motion to dismiss should be granted.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated"). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). "Summary dismissal is appropriate only where the allegations are vague [or] conclusory or palpably incredible, . . . or patently frivolous or false." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal quotations and citations omitted).
III. Analysis A. Procedural History
The court's records reveal that petitioner has previously filed applications for a writ of habeas corpus attacking the 1996 conviction and sentence challenged in this case. The first application was filed on September 1, 1999, and was denied on the merits on April 26, 2004. Wilson v. Fairman, 2:99-cv-1711 JKS (E.D. Cal.), Dkt. No. 34. The dismissal was with prejudice. Id., Dkt. No. 34-35. On March 6, 2006, the Ninth Circuit Court of Appeals affirmed the judgment. Wilson v. Fairman, Case No. 04-16019 (9th Cir. 2006).
On August 3, 2007, petitioner filed a second application for a writ of habeas corpus attacking the 1996 conviction. Wilson v. Evans, 2:07-cv-1577 LKK EFB (E.D. Cal.). Respondent moved to dismiss the action as successive and untimely; petitioner requested leave to withdraw the petition. Id., Dkt. Nos. 8, 11. On March 10, 2008, the application was dismissed without prejudice. Id., Dkt. No. 17.
On November 12, 2009, petitioner filed a third application challenging the 1996 conviction. Wilson v. Hedgpeth, 2:09-cv-3331 MCE DAD. On August 13, 2010, the application was dismissed without prejudice for lack of jurisdiction based on petitioner's failure to first seek authorization from the Ninth Circuit to file a successive petition. Id., dkt. no. 7.
On February 19, 2010, petitioner filed a document entitled "Application for Certificate of Appeal," and requested to file a successive petition, and included his ten claims challenging the 1996 conviction. Wilson v. People of the State of California, 2:10-cv-0433 FCD EFB. Petitioner was advised that he had filed his request in the wrong court, was instructed to file his request with the Ninth Circuit Court of Appeals, and this action was also dismissed for lack of jurisdiction. Id., Dkt. Nos. 8, 10.
On January 31, 2012, petitioner filed the instant action, challenging the restitution order issued with his sentence based on the 1996 conviction. (Dkt. No. 1.) Petitioner's prior applications for habeas relief did not include a challenge to the restitution order.
B. Lack of Subject Matter Jurisdiction
Habeas relief shall be granted to a person in custody pursuant to the judgment of a state court only on the ground that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254. The "in custody" requirement for a habeas petition pursuant to § 2254(a) is jurisdictional and thus is the first question a habeas court must consider. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). The requirement has two aspects: 1) the petitioner must be in custody at the time the petition is filed, and 2) the custody must be under the conviction or sentence under attack at the time the petition is filed. Id.
"Custody" includes physical imprisonment as well as other significant or severe restraints on liberty, but it does not include mere collateral consequences of a conviction. Id. at 978-80. The imposition of a fine, standing alone, is not sufficient to meet the jurisdictional requirements of § 2254. Id. at 979. Further, liability under a restitution order is not ...