(HC) Wilhelm v. Lizarraga

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA STEVE WILHELM, Case No. 1:19-cv-00841-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR LACK 13 v. OF JURISDICTION J. A. LIZARRAGA, ECF No. 4 15 Respondent.

17 Petitioner Steve Wilhelm is a state prisoner proceeding without counsel with a petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner filed a first amended petition on June 13, 2019. ECF No. 4. 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 the habeas proceeding must examine the habeas petition and order a response to the petition 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). To pass screening, the petitioner must allege a violation of “clearly established federal law”— meaning a violation of a U.S. Supreme Court holding. See White v. Woodall, 572 U.S. 415, 419 (2014). At this early stage, Rule 4 gives “courts an active role in summarily disposing of facially defective habeas petitions.” Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted).

1 Petitioner states only one claim in his habeas petition: that the trial court imposed an | excessive fine, in violation of the Eighth Amendment, when it ordered him to pay restitution.

3 | ECFNo. 4at5. A habeas claim must have a nexus to the petitioner’s custody. See Bailey v. Hill, | 599 F.3d 976, 981 (9th Cir. 2010); 28 U.S.C. § 2254(a) (a “court shall entertain an application for || writ of habeas corpus... only on the ground that he is in custody in violation of the | Constitution or laws or treaties of the United States”). This circuit has “repeatedly recognized | that the imposition of a fine, by itself, is not sufficient to meet § 2254’s jurisdictional || requirements.” See Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010); Williamson v. Gregoire, | 151 F.3d 1180, 1183 (9th Cir. 1998) (“[T]he imposition of a fine . . . is merely a collateral || consequence of conviction, and does not meet the ‘in custody’ requirement” for habeas relief.).

11 Here, petitioner does not challenge the validity of his conviction or the duration of his | confinement.! Because court-ordered restitution does not directly impact the petitioner’s liberty, | there is no nexus, as required by the plain text of § 2254(a), to his custody. See Bailey, 599 F.3d 14 | at 981. Therefore, petitioner is ordered to show cause why his petition should not be dismissed | for lack of jurisdiction.

16 | Order 17 Within fourteen days of the date of service of this order, we order petitioner to show cause | why his petition should not be dismissed for lack of jurisdiction.

20 IT IS SO ORDERED.

21 ( Waban Dated: _ February 6, 2020 22 UNIT#D STATES MAGISTRATE JUDGE | No. 206.

26 | Even if petitioner were to challenge the fact or duration of his confinement in a habeas petition, || the petition would likely fail to meet the statute of limitations. Petitioner was convicted of his crimes in 1999 and it does not appear that statutory or equitable tolling are applicable to his case.

28 | See ECF No. 4.