Torres v. Kernan

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO TORRES, Case No. 20-cv-03159-PJH

8 Plaintiff, ORDER LIFTING STAY AND 9 v. DISMISSING PETITION WITH LEAVE TO AMEND 10 SCOTT KERNAN, Re: Dkt. No. 12 Defendant. 11

12 13 Petitioner, a former California prisoner, proceeds with a pro se petition for a writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254. The petition was stayed so petitioner could 15 exhaust further claims. He has filed a motion to lift the stay and indicates that the claims 16 are exhausted. 17 BACKGROUND 18 Petitioner states that he pled guilty on February 5, 2015, and was resentenced on 19 October 3, 2018, without his knowledge or consent. Petition at 7. He states that during 20 the resentencing, restitution was imposed. Id. According to the 2015 written plea 21 agreement, petitioner initialed that he understood that the conviction on the underlying 22 charge would require him to pay restitution. Id. at 20. Petitioner is no longer in custody. 23 Id. at 1. 24 The original federal petition in this case was dismissed with leave to amend to 25 clarify his claims and demonstrate they set forth cognizable federal claims. Before 26 petitioner submitted an amended petition, he sought a stay to exhaust the claims. The 27 court granted the stay and noted that if petitioner did not obtain relief in state court, he 1 not submitted an amended petition addressing the court’s concerns. For the reasons that 2 follow, petitioner must still submit an amended petition. 3 DISCUSSION 4 STANDARD OF REVIEW 5 This court may entertain a petition for writ of habeas corpus “in behalf of a person 6 in custody pursuant to the judgment of a State court only on the ground that he is in 7 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 8 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 9 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 10 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 11 pursuant to a judgment of a state court must “specify all the grounds for relief available to 12 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 13 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 14 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 15 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 16 1970)). 17 LEGAL CLAIMS 18 As grounds for federal habeas relief petitioner states that the order to pay 19 restitution violated his rights under the Fifth, Eighth and Fourteenth Amendments. 20 Section 2254(a) uses the term “in custody” twice, with two different requirements. 21 Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). The first usage (i.e., that the petition be 22 filed “ ‘in behalf of a person in custody’“) requires that there be a restraint on the 23 petitioner’s liberty. Id. at 978-79. The second usage (i.e., that the application may be 24 entertained “‘only on the ground that he is in custody in violation of the Constitution or 25 laws or treaties of the United States’“) requires “a nexus between the petitioner’s claim 26 and the unlawful nature of the custody.” Id. at 979-80. For the second requirement to be 27 satisfied, success on the claim must result in a change in the restraint on the petitioner’s 1 Petitioner’s claims, which only challenge the restitution component of his 2 sentence, fail to satisfy the second custody requirement because success on the claims 3 might cause the restitution fine to be set aside but would not affect any restraint on his 4 liberty. See id. at 980-81 (imprisoned petitioner failed to satisfy custody requirement for 5 his petition challenging only the restitution component of his sentence because the 6 “elimination or alteration of a money judgment, does not directly impact—and is not 7 directed at the source of the restraint on—his liberty” as long as he has to serve the rest 8 of his prison sentence in the same manner). 9 In this case petitioner is no longer incarcerated. If petitioner were not on parole, 10 then setting aside the restitution fine would have no bearing on his confinement as he is 11 already out of custody. Petitioner filed another case in this court concerning his parole 12 that discussed his parole conditions. See Torres v. Kernan, Case No. 19-6885 PJH. 13 Assuming petitioner is still on parole and even if this court were to set aside the restitution 14 fine, it would have no bearing on the other parole conditions he must abide by and their 15 restraint on his liberty. Id., Docket No. 1 at 22-25. 1 16 The petition is dismissed with leave to amend to provide more information in light 17 of the legal standards set forth above. In addition, petitioner agreed to pay restitution 18 fines when he pled guilty in this instant case. Docket No. 1 at 20. He must also provide 19 more information how now having to pay restitution when he agreed to pay per the terms 20 of the plea bargain sets forth a viable federal claim. 21 CONCLUSION 22 1. The motion to lift the stay (Docket No. 12) is GRANTED and the stay is 23 LIFTED. 24 2. The petition is DISMISSED with leave to amend in accordance with the 25 standards set forth above. The amended petition must be filed no later than June 18, 26 2021, and carry the words AMENDED PETITION on the first page. Failure to amend 27 1 within the designated time will result in the dismissal of the petition. 2 3. Petitioner must keep the court informed of any change of address and must 3 comply with the court's orders in a timely fashion. Failure to do so may result in the 4 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 5 Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 6 41(b) applicable in habeas cases). 7 IT IS SO ORDERED. 8 Dated: May 20, 2021 9 10 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27