United States District Court, E.D. California
ORDER [RE: MOTION AT DOCKET NO. 39]
K. SINGLETON, JR. SENIOR UNITED STATES DISTRICT JUDGE.
Court denied Tiante Dion Scott, a state prisoner appearing
pro se, habeas relief and a certificate of
appealability on March 1, 2012. Docket Nos. 28, 29. Scott
attempted to appeal this Court's denial to the Ninth
Circuit Court of Appeal, but the appellate court likewise
denied his request for a certificate of appealability on May
24, 2013. Docket No. 37.
than six years later, Scott now files in his closed case a
motion to correct his sentence in the same underlying state
criminal case, which he contends imposes a victim restitution
order that is unauthorized under various state statutes and
in violation of the Eighth Amendment of the U.S.
Constitution's prohibition against cruel and unusual
punishment. Docket No. 39. This Court, however, is without
jurisdiction to entertain this motion.
avers that this Court has jurisdiction over the motion
pursuant to 18 U.S.C. § 3742(a)(1)-(6), which authorizes
federal criminal defendants to seek review of improper and
unauthorized sentences in the federal district courts. As
noted above, however, Scott is a California state prisoner
whose sentence was imposed by the courts of that State.
Accordingly, review of his sentence is subject not to 18
U.S.C. § 3742 but rather to the requirements of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), amended 28 U.S.C. § 2244(b),
which read, in pertinent part, as follows:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed unless -
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or (B)(i) the factual predicate for the claim
could not have been discovered previously through the
exercise of due diligence; and [¶] (ii) the facts
underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by
this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.
28 U.S.C. § 2244(b)(1)-(3)(A); see also Rule 9
of the Rules Governing § 2254 Cases in the United States
“greatly restricts the power of federal courts to award
relief to state prisoners who file second or successive
habeas corpus applications.” Tyler v. Cain,
533 U.S. 656, 661 (2001). AEDPA “creates a
‘gatekeeping' mechanism for the consideration of
second or successive applications in district court.”
Felker v. Turpin, 518 U.S. 651, 657 (1996); see
also Stewart v. Martinez-Villareal, 523 U.S.
637, 641 (1998). Second or successive habeas petitions are
subject to the “extremely stringent” requirements
of AEDPA. Babbitt v. Woodford, 177 F.3d 744, 745
(9th Cir. 1999).
a second or successive application permitted by this section
is filed in the district court, the applicant shall move in
the appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). Second or successive habeas petitions
filed in the district court without an authorizing order from
the court of appeals shall be dismissed. See 28
U.S.C. § 2244(b); see also Burton v. Stewart,
549 U.S. 147, 153 (2007) (where petitioner neither sought nor
received authorization from Court of Appeals before filing
second or successive petition, district court should have
dismissed petition for lack of jurisdiction). ‘When the
AEDPA is in play, the district court may not, in the absence
of proper authorization from the court of appeals, consider a
second or successive habeas application.'”
Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.
2001) (quoting Libby v. Magnusson, 177 F.3d 43, 46
(1st Cir. 1999)). The record reflects that Scott could have
raised his challenge to the restitution order in his initial
petition for habeas relief at Docket No. 1. Because he did
not do so, his attempt to raise it at this late juncture
constitutes a second or successive petition that this Court
is without jurisdiction to consider.
even if Scott's motion to correct the restitution order
did not constitute a second or successive petition, this
Court does not have jurisdiction over a challenge to a
restitution order imposed in state court in any event. A
petition for a writ of habeas corpus can be entertained only
on the ground that the petitioner is “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). The Ninth
Circuit has held that “§ 2254(a) does not confer
jurisdiction over a habeas corpus petition raising an
in-custody challenge to a restitution order.”
Bailey v. Hill, 599 F.3d 976, 984 (9th Cir. 2010)
(footnote omitted). “[T]he remedy that [Petitioner]
seeks, the elimination or alteration of a money judgment,
does not directly impact-and is not directed at the source of
the restraint on-his liberty.” Id. at 981. A
federal court, then, lacks jurisdiction to hear claims that
challenge the money portion of a state judgment, such as a
restitution order, which does not affect the duration of
IS THEREFORE ORDERED THAT the Motion to Correct
Unauthorized Sentence at Docket No. 39 is
IS FURTHER ORDERED THAT the Court declines to issue
a Certificate of Appealability. See 28 U.S.C. §
2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004)
(“To obtain a certificate of appealability, a prisoner
must ‘demonstrat[e] 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.'” (quoting Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003))). Any ...