1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD DE’VONN WEBB Case No. 20-CV-735 JLS (BGS)

12 Petitioner, ORDER DISMISSING WITHOUT 13 v. PREJUDICE PETITION 14 WARREN MONTGOMERY, 15 Respondent. 16 17 Petitioner Richard De’Vonn Webb, a state prisoner proceeding pro se, has submitted 18 a Petition for Writ of Habeas Corpus pursuant to

(“Pet.,” ECF No. 1). 19 For the following reasons, the Court DISMISSES WITHOUT PREJUDICE the Petition. 20 ANALYSIS 21 I. Failure to Satisfy Filing Fee Requirement 22 A Petition for Writ of Habeas Corpus must either be accompanied by a $5.00 filing 23 fee or an application to proceed in forma pauperis. See S.D. Cal. CivLR 3(a); 28 U.S.C. 24 foll. § 2254. Petitioner has not paid the $5.00 filing fee and has not filed a motion to 25 proceed in forma pauperis. If Petitioner wishes to proceed, he must either pay the $5.00 26 fee or submit adequate proof he cannot pay the fee. 27 / / / 28 / / / 1 II. Failure to State a Cognizable Claim on Federal Habeas 2 The Petition also must be dismissed because this Court lacks subject-matter 3 jurisdiction. Petitioner raises only one claim in the Petition—that the trial court improperly 4 imposed a restitution fine without sufficient evidence of his ability to pay. See Pet. at 3. 5 Title

(a) provides that: 6 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in 7 behalf of a person in custody pursuant to the judgment of a State 8 court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 9

10

(a) (emphasis added). 11 The requirement that a habeas petitioner be “in custody in violation of [federal law]” 12 is “jurisdictional.” See Bailey v. Hill,

(9th Cir. 2010); see also 13 Williamson v. Gregoire,

(9th Cir. 1998) (noting that 28 U.S.C. 14 § 2241(c)(3)’s requirement that a habeas petitioner be “in custody in violation of the 15 Constitution or laws or treaties of the United States” is jurisdictional). “The plain meaning 16 of the text of § 2254(a) makes clear that physical custody alone is insufficient to confer 17 jurisdiction.” See Bailey,

. Rather, “[it] explicitly requires a nexus between 18 the petitioner’s claim and the unlawful nature of the custody.” See

(emphasis added) 19 (citing Dickerson v. United States,

, 439 n. 3 (2000)). If the remedy sought is 20 merely “the elimination or alteration” of a petitioner’s restitutionary obligation, then there 21 is no such nexus between the habeas claim and the petitioner’s purportedly unlawful 22 custody. See id. at 981; see also Washington v. Smith,

, 1350–51 (7th Cir. 23 2009) (holding that a petitioner did not satisfy the “in custody” requirement because, even 24 if he prevailed on his ineffective assistance claim, “the only possible benefit [would] be a 25 lower payment to his victim”), quoted with approval in Bailey, 599 F.3d at 981–82. In 26 such a case, the action must be dismissed for lack of subject-matter jurisdiction. See Bailey, 27

. 28 / / / ] Here, Petitioner’s only claim challenges the restitution order. Even if Petitioner were 2 || to prevail on this claim, he would not obtain early release from custody; instead, he would 3 || be entitled only to “the elimination or alteration of a money judgment.” See

. 4 ||Consequently, the “nexus” between these claims and illegal custody is lacking. See

5 || Because Petitioner’s claim does not affect the legality of his confinement, this Court lacks 6 || subject-matter jurisdiction over the action. See Bailey,

. 7 CONCLUSION 8 For the reasons discussed above, the Court DISMISSES WITHOUT PREJUDICE 9 ||the Petition for failure to satisfy the filing fee requirement and for lack of subject-matter 10 jurisdiction. Should Plaintiff wish to reopen this action, he MUST SUBMIT on or before 11 24, 2020, (1) an amended petition remedying the jurisdictional defects identified 12 above, and (2) either (a) a copy of this Order along with the requisite $5.00 filing fee, or 13 ||(b) a motion to proceed in forma pauperis. 14 IT IS SO ORDERED. 15 16 ||Dated: April 22, 2020 psi L. Lo meeaitie- 7 on. Janis L. Sammartino United States District Judge 18 19 20 21 22 23 24 25 26 27 28