ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO TERMINATE ACTION, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [ECF No. 1]
BARBARA A. McAULIFFE, Magistrate Judge.
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
Petitioner filed the instant petition for writ of habeas corpus on March 27, 2013. Petitioner contends that his convictions of two counts of dissuading a witness (counts five and six) of the Information in the underlying criminal conviction violate the prohibition against double jeopardy.
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition... that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases; see also Hendricks v. Vasquez , 908 F.2d 490, 491 (9th Cir. 1990). A petition for 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).
I. Double Jeopardy Clause
In the petition, Petitioner contends his convictions and sentences, including restitution on counts five and six (dissuading a witness) violated the Double Jeopardy Clause of the Fifth Amendment, as held in case number 1:06-cv-00909-CRB (HC), Cochran v. Tilton. Petitioner is correct that this Court in case number 1:06-cv-00909-CRB (HC), held that Petitioner's conviction on both counts five and six was in violation of the Double Jeopardy Clause of the Fifth Amendment because there was not sufficient evidence to support the existence of two separate counts of dissuading a witness. (ECF No. 57, Order at 9-10.) The petition was denied in all other respects which was upheld on appeal. (ECF Nos. 57, 68.) Pursuant to the Court's prior order, Petitioner was re-sentenced in state court. Petitioner cannot raise the same challenge again by way of a new petition for writ of habeas corpus as he has already received any available relief. A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). Accordingly, Petitioner cannot proceed on this claim.
II. Challenge to Fine and Restitution
In addition, Petitioner's challenge to the failure to return a certain portion of the fine and/or restitution pursuant to California Penal Code section 1262, is not cognizable by way of section 2254. A challenge to the restitution fine does not affect the fact or duration of petitioner's custody. See Calderon v. Ashmus , 523 U.S. 740, 747 (1998) (limiting § 2254 habeas to challenges to fact or duration of custody); United States v. Thiele , 314 F.3d 399, 400 (9th Cir. 2002) (finding challenge to restitution fine not cognizable on habeas). Furthermore, federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schiavo , 289 F.3d 616 (9th Cir. 2002) (a claim challenging state court's discretionary decision concerning application of state sentencing law presented only state law issues and was not cognizable in a proceeding pursuant to 28 U.S.C. § 2254); Langford v. Day , 110 F.3d 1380, 1389 (9th Cir. 1996). The Court accepts a state court's interpretation of state law. Id . Petitioner fails to raise a federal constitutional violation and his petition for writ of habeas corpus must be dismissed. Because Petitioner's sole challenge is to fine and restitution which is not cognizable by way of section 2254, further amendment would be futile. Jarvis v. Nelson , 440 F.2d at 14.
III. Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 cases requires a district court to rule on whether a petitioner is entitled to a certificate of appealability in the same order in which the petition is denied. The requirement that a petitioner seek a certificate of appealability is a gate-keeping mechanism that protects the Court of Appeals from having to devote resources to frivolous issues, while at the same time affording petitioners an opportunity to persuade the Court that, through full briefing and argument, the potential merit of claims may appear. Lambright v. Stewart , 220 F.3d 1022, 1025 (9th Cir. 2000). However, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell , 537 U.S. 322, 335-336 (2003). The controlling statute, 28 U.S.C. § 2253, provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken ...