Cas@ 8:22-cv-00010-DOC-GJS Document5 Filed 01/12/22 Pagelof5 Page ID #:57 9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA

1] ALBERTO M. BERNAL, _. Case No. 8:22-cv-00010-DOC (GJS) 12 Petitioner

ORDER: SUMMARILY

13 v. DISMISSING PETITION; AND

DENYING A CERTIFICATE OF

14 THE PEOPLE OF THE STATE APPEALABILITY 15 OF CALIFORNIA, et al., Respondents. 16 17 18 On December 6, 2021, in Case No. 8:21-cv-02016-DOC (GJS) (the “First 19 || Case”), Petitioner filed a 28 U.S.C. § 2254 habeas petition with an attached 20 || memorandum of points and authorities and a “Motion for Modification of Sentence 21 || Pursuant to Panel Code Section 1202.4(b), (f)” (collectively, the “First Case 22 || Petition”). The “Motion” was duplicative of the two grounds for habeas relief 23 || alleged in the First Case Petition, which attacked the trial court’s imposition of 24 || restitution obligations. As alleged in the First Case Petition, when Petitioner was 25 || sentenced, the trial court imposed restitution fines totaling $16,538.59. Petitioner 26 || appended copies of the April 18, 2001 Abstract of Judgment that issued in his state 27 || criminal case, which showed that the following two restitution fines were ordered: a 28 || restitution fine of $10,000 pursuant to California Penal Code § 1202.4(b); and a

Case 8:22-cv-00010-DOC-GJS Document 5 Filed 01/12/22 Page 2 of 5 Page ID #:58

1 restitution fine of $6,538.59 pursuant to California Penal Code § 1202.4(f), payable 2 to the victim. 3 Ground One of the First Case Petition asserted that the trial court erred in 4 imposing these restitution fines, because although it had found that Petitioner lacked 5 the present ability to pay a particular sentencing-related cost, it failed to make a 6 finding as to his ability to pay the restitution fines. Petitioner argued that under 7 California law, including California Government Code § 13967, a trial court is 8 required to determine a defendant’s ability to pay before imposing a restitution 9 obligation. Ground Two of the Petition essentially repeated Petitioner’s Ground 10 One arguments. Petitioner contended that the trial court “exceeded its statutory 11 power” under the foregoing Government Code provision by imposing the restitution 12 fines without first ascertaining his ability to pay them. 13 On December 20, 2021, the Court summarily dismissed the First Case 14 Petition and denied a certificate of appealability. [See First Case Dkt. Nos. 5-6.] As 15 the Court explained, when a habeas petition stems from a state court conviction, a 16 federal court has jurisdiction to consider federal habeas relief only if the petitioner is 17 “in custody pursuant to the” conviction challenged by the petition. 28 U.S.C. § 18 2254(a); see also 28 U.S.C. § 2241(a) & (c)(3). The Supreme Court has made clear 19 that, for federal jurisdiction to exist over a Section 2254 petition, the petitioner must 20 be “in custody” “under the conviction or sentence under attack at the time his 21 petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam); see 22 also Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010) (same, and further 23 observing that “Section 2254(a)’s ‘in custody’ requirement is jurisdictional and 24 therefore ‘it is the first question we must consider’” (citation omitted)). The fact of 25 a state prisoner's physical custody alone is insufficient to confer habeas jurisdiction; 26 rather, jurisdiction exists only if there is a nexus between the petitioner’s claim and 27 the allegedly unlawful nature of the custody. Id. at 980. The Court concluded that 28 the claims alleged in the First Case Petition could not be raised in federal habeas 2 Case 8:22-cv-00010-DOC-GJS Document 5 Filed 01/12/22 Page 3 of 5 Page ID #:59

1 review, because the federal habeas statute does not provide jurisdiction over a claim 2 challenging a restitution order, even when the petitioner is incarcerated. See id. at 3 977, 982 (affirming dismissal of state prisoner’s habeas petition challenging a 4 restitution obligation on the ground that the petitioner did not meet Section 2254’s 5 “in custody” requirement for jurisdiction); see also id. at 984 (“we hold that 6 § 2254(a) does not confer jurisdiction over a habeas corpus petition raising an in- 7 custody challenge to a restitution order”); Williamson v. Gregoire, 151 F.3d 1180, 8 1183 (9th Cir. 1998) (observing that, “[i]n general, courts hold that the imposition of 9 a fine . . . is merely a collateral consequence of conviction, and does not meet the ‘in 10 custody’ requirement”); Flores v. Hickman, 533 F.Supp.2d 1068, 1085 (C.D. Cal. 11 2008) (trial court’s imposition of restitution not cognizable on habeas review under 12 Section 2254 because restitution order does not affect duration of custody). 13 Petitioner has not appealed the Court’s December 20, 2021 Order and 14 Judgment dismissing the First Case. Rather, on January 3, 2021, he instituted this 15 new action by filing a nominally modified version of the First Case Petition, which 16 was assigned Case No. 8:22-cv-00010-DOC (GJS) (“Second Case Petition”). In the 17 Second Case Petition, Petitioner raises the same two habeas grounds he asserted in 18 the First Case and attaches the same memorandum of points and authorities, 19 exhibits, and prior “Motion” he attached to the First Case Petition. The only 20 differences between the prior and current petitions are that the Second Case Petition 21 has a more recent signature date, a slightly varied ordering of the same attached 22 exhibits, and a copy of the Court’s December 20, 2021 summary dismissal order in 23 the First Case has been attached as a new exhibit. In all meaningful respects, the 24 First Case Petition and the Second Case Petition are truly identical. 25 Rule 1(b) of the Rules Governing Section 2254 Cases in the United States 26 District Courts, 28 U.S.C. foll. § 2254 (“Habeas Rules”), permits this Court to 27 “apply any or all of these rules” to any habeas petition. Rule 4 of the Habeas Rules 28 requires a district court to dismiss a petition, without ordering a responsive pleading, 3 Case 8:22-cv-00010-DOC-GJS Document 5 Filed 01/12/22 Page 4 of 5 Page ID #:60

1 when “it plainly appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief.” 3 Federal courts “retain broad powers to prevent duplicative or unnecessary 4 litigation.” Slack v. McDaniel, 529 U.S. 473, 478 (2000); see also Landis v. N. Am. 5 Co., 299 U.S. 248, 254 (1936) (every federal court has the inherent power “to 6 control disposition of the causes on its docket with economy of time and effort for 7 itself, for counsel, and for litigants”). A plaintiff must bring one action against a 8 party or privies relating to the same transaction or event. Adams v. Calif. Dep’t of 9 Health Services, 487 F.3d 684, 693 (9th Cir. 2007). “District courts retain broad 10 discretion to control their dockets and ‘[i]n the exercise of that power they may 11 impose sanctions including, where appropriate, . . . dismissal.’” Id. at 688 (citation 12 omitted). The fact that a district court has identified defects in a first-filed action 13 does not give a litigant the right to file a second lawsuit based upon the same facts. 14 Id.; see also Garza v. Unknown, No. 1:08-cv-01307 GSA, 2009 WL 197528 (E.D. 15 Cal. Jan. 27, 2009) (dismissing habeas petition on the ground it was duplicative 16 when it sought to challenge same conviction challenged by earlier petitions that had 17 been dismissed for failure to state a claim). 18 If Petitioner disagreed with the Court’s conclusion that it lacked jurisdiction 19 to consider the First Case Petition and its related December 20, 2021 Order and 20 Judgment summarily dismissing the First Case, his remedy was to appeal, not 21 simply turn around and re-file the case despite the fatal jurisdictional defect 22 identified by the Court. This case, like the prior one, challenges only Petitioner’s 23 restitution obligations imposed by the state criminal court, and under clear 24 precedent, there is no jurisdiction under 28 U.S.C. § 2254 to hear Petitioner’s 25 challenge. The Second Case Petition is facially defective, and may not be 26 considered by this Court, for the same reasons identified in the Court’s December 27 20, 2021 Order dismissing the First Case Petition, namely, lack of jurisdiction. 28 Nothing has changed to make jurisdiction somehow arise when it was, and remains, 4 Cas@¢ 8:22-cv-00010-DOC-GJS Document5 Filed 01/12/22 Page5of5 Page □□ #:61

1 || non-existent. As a result, summary dismissal of the current Second Case Petition is 2 || required by Rule 4 of the Habeas Rules. 3 Accordingly, IT IS ORDERED that: the Second Case Petition and the related 4 || “Motion” are DISMISSED; and Judgment shall be entered dismissing this action 5 || without prejudice.' 6 In addition, pursuant to Rule 11(a) of the Habeas Rules, the Court has 7 || considered whether a certificate of appealability is warranted in this case. See 28 8 || U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court 9 || concludes that a certificate of appealability is unwarranted, and thus, a certificate of 10 || appealability is DENIED. 1] 12 IT IS SO ORDERED. 13 14 || DATED: January 12, 2022 Alu Lo

DAVIDO.CARTER SOS

16 UNITED STATES DISTRICT JUDGE 17 18 || PRESENTED BY:

20 || GAIL J. STANDISH 91 || UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 Wa Petitioner’s motion for the appointment of counsel [Dkt. No. 2] is DENIED. There is no 28 || reason to appoint counsel for a case in which the Court lacks jurisdiction, as Plaintiff previously was advised.