The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on December 6, 2012. It plainly appears from the face of the Petition that Petitioner is not entitled to federal habeas relief. Therefore, the Petition should be denied and dismissed without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
The Petition challenges only the portion of Petitioner's criminal sentence requiring him "to pay restitution and/or fine on [sic] the amount of $21,100" (Appendix to Petition). Federal habeas corpus jurisdiction does not exist over a state prisoner's challenge to the non-custodial portion of a criminal sentence, such as an order to pay restitution or a fine. Bailey v. Hill, 599 F.3d 976, 982-84 (9th Cir. 2010); accord Bragg v. California, 2012 WL 1075712 (C.D. Cal. Feb. 16, 2012), adopted, Bragg v. California, 2012 WL 1078762 (C.D. Cal.
March 26, 2012); see 28 U.S.C. § 2254(a).
Therefore, it is recommended that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NO. ED CV 12-2147-AG(E)
GARY ALLEN ABERNATHY, ) Petitioner, v. ) PARAMO, WARDEN, ) Respondent. )
CONCLUSIONS AND RECOMMENDATIONS OF
ORDER ACCEPTING FINDINGS,