1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 NICHOLAS TRAMMELL, 11 Case No. 20-02367 EJD (PR) Petitioner, 12 ORDER OF DISMISSAL; DENYING v. IN FORMA PAUPERIS STATUS; 13 DENYING CERTIFICATE OF 14 STATE OF CALIFORNIA, A TOPP CE LA EL RA KB I RL EIT GY A; R I DN IS NT GR UCTIONS OPENING SEPARATE HABEAS 15 Respondent. ACTION

16 (Docket No. 7) 17

18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to

, challenging a $350 infraction involving the light-rail 20 in Santa Clara County. Dkt. No. 1. Petitioner filed a motion for leave to proceed in forma 21 pauperis. Dkt. No. 7. 22 23 BACKGROUND 24 According to the petition, Petitioner is challenging an “infraction given to me in a 25 ticket format with payment fees.” Dkt. No. 1 at 2. Petitioner indicates that he is currently 26 in custody for a “Stanislaus County matter” and not for the infraction that he is 27 challenging.

. Petitioner indicates that he did not appeal the matter in the state 1 Petitioner filed this federal habeas action on February 4, 2020. The matter was 2 dismissed on July 7, 2020, for failure to file a complete In Forma Pauperis (“IFP”) 3 application in the time provided, Dkt. No. 5, but later reopened when an IFP application 4 was docketed as being filed before the judgment but not posted until after the matter had 5 already been closed. Dkt. Nos 7, 8. 6 For the reasons discussed below, this action must be dismissed. 7 8 DISCUSSION 9 A. Custody 10 This court may entertain a petition for a writ of habeas corpus “in behalf of a person 11 in custody pursuant to the judgment of a State court only on the ground that he is in 12 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 13 § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause why the writ should not be granted unless it appears from the application that the applicant 14 or person detained is not entitled thereto.” Id. § 2243. 15 Section 2254(a) uses the term “in custody” twice, with two different requirements. 16 Bailey v. Hill,

(9th Cir. 2010). The first usage (i.e., that the petition be 17 filed “‘in behalf of a person in custody’”) requires that there be a restraint on the 18 petitioner’s liberty.

. The second usage (i.e., that the application can be 19 entertained “‘only on the ground that he is in custody in violation of the Constitution or 20 laws or treaties of the United States’”) requires “a nexus between the petitioner’s claim and 21 the unlawful nature of the custody.”

. For the second requirement to be 22 satisfied, success on the claim must result in a change in the restraint on the petitioner’s 23 liberty. See

(second custody requirement not satisfied for claim that counsel was 24 ineffective in not objecting to restitution order because success might cause money award 25 to be set aside but would not affect any restraint on petitioner’s liberty). 26 The federal writ of habeas corpus is only available to persons “in custody” at the 27 time the petition is filed. See

(c), 2254(a); Carafas v. LaVallee, 391 1 in custody under the conviction or sentence under attack at the time the petition is filed. 2 Maleng v. Cook,

(1989). 3 Petitioner fails to satisfy the custody requirement because there is no nexus because 4 Petitioner’s claim and the unlawful nature of his custody. In his answer to the Question 5 I.A.6. of the form petition, “Are you now in custody serving this term?”, Petitioner writes 6 “no not for this infraction” but rather for a “Stanislaus County matter.” Dkt. No. 1 at 1. 7 Because he is currently in prison serving a sentence, Petitioner satisfies the first custody 8 requirement. Bailey,

. However, Petitioner fails to satisfy the second 9 requirement, i.e., that success the claim must result in a change in the restraint on his 10 liberty.

. Put another way, even if he were succeed on a challenge against the 11 $350 ticket, it would not result in a change to the Stanislaus County conviction and 12 sentence for which he is presently confined. Because Petitioner fails to satisfy the “in custody” requirement, there is no habeas 13 jurisdiction present over this matter. The instant petition must be dismissed for lack of 14 jurisdiction. See

(c), 2254(a). 15 16 B. In Forma Pauperis Application 17 Petitioner filed a motion for leave to proceed IFP. Dkt. No. 7. However, the 18 supporting documentation indicates that Petitioner is able to pay the $5.00 filing fee as his available balance was $283.29.

. Accordingly, the motion is DENIED because 19 20 Petitioner has failed to show an adequate level of poverty to justify IFP status. 21 C. Other Filings in This Matter 22 Petitioner file da “notice of motion order to sign in Plaintiff’s carjacking charge 23 from out of state.” Dkt. No. 9. The 2 page document is illegible, however, and the Court is unable to decipher how this request is relevant to the infraction which he is challenging. 24 Furthermore, the Court has found it lacks jurisdiction over that claim. Accordingly, the 25 motion is DENIED as moot. 26 Petitioner also filed a “Notice of Points and Authorities in Support of Application 27 1 || document, Petitioner mentions voting fraud in connection with voting ballots and appears 2 || to seek damages for mental anguished suffered thereby.

This claim has no bearing 3 || with a habeas action challenging unlawful custody based on an unconstitutional conviction 4 || or sentence in which money damages is not an available form of relief. Accordingly, to 5 || the extent that Petitioner seeks money damages against state actors for the violation of his 6 || constitutional rights, he must file it as a separate action under

. 7 Lastly, on September 28, 2020, Petitioner filed another document titled “petition for 8 || writ of habeas corpus” which challenges a conviction for rape and related charges out of 9 || Stanislaus County. Dkt. No. 11. He 1s clearly attempting to challenge a different state 10 || conviction and sentence. That petition must be filed as a separate case, and the related 11 || filing fees assessed. Accordingly, the Clerk shall file a copy of the petition under Docket q (12 No. 11 and open it as a new habeas action.

CONCLUSION 3 15 For the foregoing reasons, this petition is DISMISSED for lack of jurisdiction. A 16 || Petitioner’s motion for leave to proceed in forma pauperis is DENIED. Dkt. No. 7. & s 17 No certificate of appealability is warranted in this case because a reasonable jurist 18 || would not find the dismissal of this petition debatable or wrong. Slack v. McDaniel, 529 19 || U.S. 473, 484 (2000). 20 The Clerk shall take a copy of the petition filed under Docket No. 11 in this matter 21 || and open it as a separate habeas action with the filing date of September 28, 2020. The 22 || Clerk shall also send Petitioner the appropriate notice regarding the payment of fees or 23 || filing of an IFP application for that separate action. 24 This order terminates Docket No. 7. 25 IT IS SO ORDERED. 26 || Dated: 1/20/2021 07 United States District ludge 28 PAPRO-SE \C.20102367 Trammell. dism(custody)