June 4, 2013
JOHN PAUL JONES MURPHY, Petitioner,
PEOPLE OF THE STATE OF CAL., Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. Examination of the request to proceed in forma pauperis reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).
Under Rule 4 of the Rules Governing § 2254 Cases, the court must conduct a preliminary review of § 2254 habeas petitions and dismiss any petition where it plainly appears that petitioner is not entitled to relief. The court has conducted that review.
Petitioner challenges the fact that, at sentencing, he was ordered to pay $3, 000 in restitution. However, an application for writ of habeas corpus under 28 U.S.C. § 2254 can only be entertained if it is alleged that the petitioner is in custody in violation of federal law. 28 U.S.C. § 2254(a). Therefore, the court does not have jurisdiction to hear petitioner's restitution claims, Bailey v. Hill , 599 F.3d 976, 980 (9th Cir. 2010), and petitioner's habeas application must be dismissed.
Petitioner has requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner , 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require." See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel.
Finally, petitioner has requested that the court hold an evidentiary hearing. Because petitioner cannot bring a claim concerning restitution in a § 2254 action, there is no cause for an evidentiary hearing.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's motion for leave to proceed in forma pauperis (ECF No. 2) is granted;
2. Petitioner's motion for the appointment of counsel (ECF No. 3) is denied;
3. Petitioner's request for an evidentiary hearing is denied; and
4. The Clerk of the Court assign a district court judge to this case.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's application for writ of habeas corpus is dismissed; and
2. This case be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).