United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS
PETITION FOR WRIT OF HABEAS CORPUS AT SCREENING WITHOUT
PREJUDICE, OBJECTIONS DUE IN FOURTEEN DAYS ECF NO. 1, ORDER
THAT CLERK'S OFFICE ASSIGN CASE TO A DISTRICT
Johny Heu, a state prisoner proceeding without counsel, seeks
a writ of habeas corpus. Petitioner filed using a California
state form. ECF No. 1. Because petitioner challenges the
state trial court's imposition of fines and restitution,
I construe his petition as filed under 28 U.S.C. § 2254,
the exclusive means for a state prisoner to challenge the
constitutionality of his sentence in federal court. See
Greenawalt v. Stewart, 105 F.3d 1287 (9th Cir. 1997).
The matter is before the court for preliminary review under
Rule 4 of the Rules Governing Section 2254 Cases. Under Rule
4, the judge assigned to a habeas proceeding must examine the
petition and order a response unless it “plainly
appears” that the petitioner is not entitled to relief.
See Valdez v. Montgomery, 918 F.3d 687, 693 (9th
Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127
(9th Cir. 1998). I recommend that the court dismiss the
petition without prejudice for lack of jurisdiction.
court lacks jurisdiction over Section 2254 claims that do not
“call into question the lawfulness of conviction or
confinement or challenge the fact, length, or conditions of
the petitioner's custody or seek immediate or speedier
release.” Heck v. Humphrey, 512 U.S. 477,
481-83 (1994). To be cognizable, the petitioner must assert
that he is “in custody in violation of the Constitution
or law or treaties of the United States, ” 28 U.S.C.
§ 2254(d), which requires the petitioner to allege a
connection between a claimed violation and custody, see
Bailey v. Hill, 559 F.39 976, 978-80 (9th Cir. 2010).
Habeas claims are only proper when seeking a “remedy
for severe restraints on individual liberty.”
Hensley v. Mun. Court, 411 U.S. 345, 351 (1973).
Section 2254 claims challenging fines and restitution alone,
without challenging custody, are not cognizable.
Bailey at 984 (holding that courts “do not
have jurisdiction over a habeas corpus petition brought
pursuant to § 2254 challenging only a restitution
order”). Here, petitioner's sole claim is that the
trial court improperly imposed fines and restitution without
determining his ability to pay, in violation of state and
federal laws. ECF No. 1 at 3. Because petitioner's claim
challenges only a restitution order and fine, rather than
more severe restraints on liberty, his claim is not
cognizable and should be dismissed without prejudice.
recommend that the court not issue a certificate of
appealability. A petitioner seeking a writ of habeas corpus
has no absolute right to appeal a district court's denial
of a petition; he may appeal only in limited circumstances.
See 28 U.S.C. § 2253; Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing
Section 2254 Cases requires a district court to issue or deny
a certificate of appealability when entering a final order
adverse to a petitioner. See also Ninth Circuit Rule
22-1(a); United States v. Asrar, 116 F.3d 1268, 1270
(9th Cir. 1997). A certificate of appealability will not
issue unless a petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This standard requires the petitioner to
show that “jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 327; see Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The petitioner must
show “something more than the absence of frivolity or
the existence of mere good faith.” Miller-El,
537 U.S. at 338. I find that reasonable jurists would neither
disagree with my conclusion nor find that petitioner should
be encouraged to proceed further.
clerk of court is directed to assign this case to a U.S.
District Court Judge who will review the following findings
recommend that the court dismiss the petition for a writ of
habeas corpus, ECF No. 1, for lack of jurisdiction and
decline to issue a certificate of appealability.
findings and recommendations are submitted to the U.S.
District Court Judge presiding over this case under 28 U.S.C.
§ 636(b)(1)(B) and Rule 304 of the Local Rules of
Practice for the United States District Court, Eastern
District of California. Within fourteen days of service of
the findings and recommendations, any party may file written
objections to the findings and recommendations with the court
and serve a copy on all parties. That document must be
captioned “Objections to Magistrate Judge's