1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD DAVID WELSH, JR., Case No.: 22-cv-01497-WQH-RBB

12 Petitioner,

ORDER: (1) GRANTING

13 v. APPLICATION TO PROCEED IN

FORMA PAUPERIS AND (2)

14 C. CATES, Warden,

DISMISSING PETITION WITHOUT

15 Respondent. PREJUDICE 16 17 On September 29, 2022, Petitioner, a state prisoner proceeding pro se, submitted a 18 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On October 6, 2022, the 19 Court dismissed the case without prejudice because Petitioner failed to satisfy the filing 20 fee requirement. (ECF No. 2.) In its Order, the Court notified Petitioner that in order to 21 have his case reopened he must either pay the filing fee or provide adequate proof of his 22 inability to pay no later than November 18, 2022. Id. On October 17, 2022, Petitioner filed 23 a Motion to Proceed In Form Pauperis. (ECF No. 3.) 24 REQUEST TO PROCEED IN FORMA PAUPERIS 25 According to Petitioner’s trust account statement, Petitioner has only $3.54 on 26 account at the correctional institution in which he is confined. (See ECF No. 3 at 6.) 27 Because Petitioner has insufficient funds to pay the $5.00 filing fee, the Court GRANTS 28 Petitioner’s application to proceed in forma pauperis and allows Petitioner to prosecute the 1 above-referenced action without being required to prepay fees or costs and without being 2 required to post security. The Clerk of the Court shall file the Petition for Writ of Habeas 3 Corpus without prepayment of the filing fee. 4 FAILURE TO STATE A COGNIZABLE CLAIM ON FEDERAL HABEAS 5 The Petition must be dismissed, however, because this Court lacks subject matter 6 jurisdiction. The only claims raised in the Petition relate to the imposition of a restitution 7 fine. Petitioner argues the fine is excessive and should be reduced. (ECF No. 1 at 3.) Title 8 28 U.S.C. § 2254(a) provides that: 9 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in 10 behalf of a person in custody pursuant to the judgment of a State 11 court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 12

13 28 U.S.C. § 2254(a) (emphasis added). 14 The requirement that a habeas petitioner be “in custody in violation of [federal law]” 15 is “jurisdictional.” See Bailey v. Hill, 599 F.3d 976, 978 (9th Cir.2010); cf. Williamson v. 16 Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998) (noting that 28 U.S.C. § 2241(c)(3)s 17 requirement that a habeas petitioner be “in custody in violation of the Constitution or laws 18 or treaties of the United States” is jurisdictional). “The plain meaning of the text of 19 § 2254(a) makes clear that physical custody alone is insufficient to confer jurisdiction.” 20 See Bailey, 599 F.3d at 980. Rather, “[it] explicitly requires a nexus between the 21 petitioner’s claim and the unlawful nature of the custody.” See id. (citing Dickerson v. 22 United States, 530 U.S. 428, 439 n. 3 (2000)). If the remedy sought is merely “the 23 elimination or alteration” of a petitioner’s restitutionary obligation, then there is no such 24 nexus between the habeas claim and the petitioner’s purportedly unlawful custody. See id. 25 at 981; see also Washington v. Smith, 564 F.3d 1350, 1350–51 (7th Cir. 2009) (holding that 26 a petitioner did not satisfy the “in custody” requirement because, even if he prevailed on 27 his ineffective assistance claim, “the only possible benefit [would] be a lower payment to 28 his victim”), (quoted with approval in Bailey, 599 F.3d at 981–82). In such a case, the 1 ||action must be dismissed for lack of subject matter jurisdiction. See Bailey, 599 F.3d at 2 3 Here, Petitioner’s claim challenges the amount of his restitution order. Even if 4 Petitioner prevailed on these claims, he would not obtain early release from custody; 5 instead, he would be entitled to only “the elimination or alteration of a money judgment” 6 ||(and perhaps the return of funds already paid). See Bailey, 599 F.3d at 981. Thus, the 7 || “nexus” between these claims and illegal custody is lacking. See id. Put another way, the 8 || legal theories on which his claims rely are irrelevant — the only relevant consideration is 9 whether his claims would impair the validity of the custodial sentence. /d. at 978, 984 10 || (affirming dismissal of ineffective assistance claim for lack of subject matter jurisdiction); 11 || Washington, 564 F.3d at 1351. Because these claims do not affect the legality of 12 || Petitioner’s confinement, this Court lacks subject matter jurisdiction over the action. See 13 || Bailey, 599 F.3d at 984. 14 CONCLUSION 15 For the reasons discussed above, the Court GRANTS the application to proceed in 16 forma pauperis (ECF No. 3) and DISMISSES the Petition without prejudice, for lack of 17 || subject matter jurisdiction. 18 IT IS SO ORDERED. 19 Dated: October 24, 2022 BE: eg Ze. A a 20 Hon, William Q. Hayes 1 United States District Court 22 23 24 25 26 27 28