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Gary Allen Abernathy v. Paramo

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


December 11, 2012

GARY ALLEN ABERNATHY,
PETITIONER,
v.
PARAMO, WARDEN,
RESPONDENT.

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.

PROCEEDINGS

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.

DISCUSSION

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.

NOTICE

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, UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED:

ANDREW J. GUILFORD UNITED STATES DISTRICT JUDGE

NO. ED CV 12-2147-AG(E)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

GARY ALLEN ABERNATHY, Petitioner, v. JUDGMENT PARAMO, WARDEN, Respondent.

Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,

IT IS ADJUDGED that the Petition is denied and dismissed without prejudice.

DATED:

ANDREW J. GUILFORD UNITED STATES DISTRICT JUDGE

20121211

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