Opinion
No. C 03-0592 MMC (PR)
February 26, 2003
ORDER OF DISMISSAL
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
BACKGROUND
Petitioner was convicted in Monterey County Superior Court of possession of marijuana while in prison. On September 13, 2000, the trial court sentenced petitioner to four years in state prison and imposed two restitution fines. The California Court of Appeal affirmed. Petitioner's appeal to the Supreme Court of California and subsequent petition for a writ of certiorari to the United States Supreme Court were unsuccessful.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a);Rose v. Hodnes, 423 U.S. 19, 21 (1975). A district court 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 or person detained is, not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).
B. Legal Claims
Petitioner claims the trial court violated his right to due process by imposing two restitution fines that were not part of his plea agreement and were imposed without a hearing on petitioner's ability to pay. The habeas sections of Title 28 of the United States Code govern claims by a prisoner attacking the validity or duration of his confinement See Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The instant petition does not challenge the validity or duration of petitioner's confinement. Rather, it seeks relief under 28 U.S.C. § 2254 from the restitution fines imposed as part of petitioner's sentence. A claim challenging a restitution fine under the analogous habeas provision for federal prisoners, 28 U.S.C. § 2255, is not a cognizable basis for habeas relief because such claims do not challenge the validity or duration of confinement. See United States v. Thiele, 3 14 F.3d 399, 400 (9th Cir. 2002); United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999). Petitioner cites no authority, and the Court is aware of none, for adopting a different rule where the petition is brought under 28 U.S.C. § 2254. Indeed, the touchstone of a habeas claim under 28 U.S.C. § 2254 has been its effect on the legality or duration of a prisoner's confinement. See, e.g., Young v. Kennv, 907 F.2d 874, 876-78 (9th Cir. 1990) (addressing parole or time credit claims). Because petitioner's claim does not affect the validity or duration of his confinement, and a determination of his claim would not entitle him to earlier release from custody, his claim is not a cognizable basis for habeas relief under 28 U.S.C. § 2254.
CONCLUSION
For the foregoing reasons, the petition is DISMISSED for failure to state a cognizable claim for relief. All pending motions are terminated and the clerk shall close the file.IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury, The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the petition is DISMISSED for fai1ure to state a cognizable claim for re1 ief.
All pending motions are TERMINATED.