1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNY HEU, Case No. 1:19-cv-00083-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS

THAT COURT DISMISS PETITION FOR

13 v. WRIT OF HABEAS CORPUS AT

SCREENING WITHOUT PREJUDICE

14 PEOPLE OF THE STATE OF

CALIFORNIA, OBJECTIONS DUE IN FOURTEEN DAYS

15 Respondent. ECF No. 1 16

ORDER THAT CLERK’S OFFICE ASSIGN

17 CASE TO A DISTRICT JUDGE 18 19 Petitioner Johny Heu, a state prisoner proceeding without counsel, seeks a writ of habeas 20 corpus. Petitioner filed using a California state form. ECF No. 1. Because petitioner challenges 21 the state trial court’s imposition of fines and restitution, I construe his petition as filed under 28 22 U.S.C. § 2254, the exclusive means for a state prisoner to challenge the constitutionality of his 23 sentence in federal court. See Greenawalt v. Stewart, 105 F.3d 1287 (9th Cir. 1997). The matter 24 is before the court for preliminary review under Rule 4 of the Rules Governing Section 2254 25 Cases. Under Rule 4, the judge assigned to a habeas proceeding must examine the petition and 26 order a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez 27 v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 28 1 Cir. 1998). I recommend that the court dismiss the petition without prejudice for lack of 2 jurisdiction. 3 This court lacks jurisdiction over Section 2254 claims that do not “call into question the 4 lawfulness of conviction or confinement or challenge the fact, length, or conditions of the 5 petitioner’s custody or seek immediate or speedier release.” Heck v. Humphrey, 512 U.S. 477, 6 481-83 (1994). To be cognizable, the petitioner must assert that he is “in custody in violation of 7 the Constitution or law or treaties of the United States,” 28 U.S.C. § 2254(d), which requires the 8 petitioner to allege a connection between a claimed violation and custody, see Bailey v. Hill, 559 9 F.39 976, 978-80 (9th Cir. 2010). Habeas claims are only proper when seeking a “remedy for 10 severe restraints on individual liberty.” Hensley v. Mun. Court, 411 U.S. 345, 351 (1973). 11 Section 2254 claims challenging fines and restitution alone, without challenging custody, are not 12 cognizable. Bailey at 984 (holding that courts “do not have jurisdiction over a habeas corpus 13 petition brought pursuant to § 2254 challenging only a restitution order”). Here, petitioner’s sole 14 claim is that the trial court improperly imposed fines and restitution without determining his 15 ability to pay, in violation of state and federal laws. ECF No. 1 at 3. Because petitioner’s claim 16 challenges only a restitution order and fine, rather than more severe restraints on liberty, his claim 17 is not cognizable and should be dismissed without prejudice. 18 I recommend that the court not issue a certificate of appealability. A petitioner seeking a 19 writ of habeas corpus has no absolute right to appeal a district court’s denial of a petition; he may 20 appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 21 335-36 (2003). Rule 11 Governing Section 2254 Cases requires a district court to issue or deny a 22 certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 23 Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of 24 appealability will not issue unless a petitioner makes “a substantial showing of the denial of a 25 constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that 26 “jurists of reason could disagree with the district court’s resolution of his constitutional claims or 27 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 28 further.” Miller-El, 537 U.S. at 327; see Slack v. McDaniel, 529 U.S. 473, 484 (2000). The 1 | petitioner must show “something more than the absence of frivolity or the existence of mere good 2 | faith.” Miller-El, 537 U.S. at 338. I find that reasonable jurists would neither disagree with my 3 | conclusion nor find that petitioner should be encouraged to proceed further. 4 | Order 5 The clerk of court is directed to assign this case to a U.S. District Court Judge who will 6 | review the following findings and recommendations. 7 | Findings and Recommendations 8 I recommend that the court dismiss the petition for a writ of habeas corpus, ECF No. 1, for 9 | lack of jurisdiction and decline to issue a certificate of appealability. 10 These findings and recommendations are submitted to the U.S. District Court Judge 11 | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 12 | Practice for the United States District Court, Eastern District of California. Within fourteen days 13 | of service of the findings and recommendations, any party may file written objections to the 14 | findings and recommendations with the court and serve a copy on all parties. That document 15 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 16 | District Judge will then review the findings and recommendations under 28 U.S.C. 17 | § 636(b)U)(C). 18 19 IT IS SO ORDERED. : N prssany — Dated: _ November 7, 2019 21 UNIT#D STATES MAGISTRATE JUDGE 22 23 24 | No. 206. 25 26 27 28