Bailey v. Hill, 09-35450.

Citation599 F.3d 976
Decision Date25 March 2010
Docket NumberNo. 09-35450.,09-35450.
PartiesSteven Ray BAILEY, PetitionerAppellant, v. Jean HILL, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Nell Brown, Assistant Federal Public Defender, Federal Public Defender's Office, Portland, OR, for petitioner-appellant Steven Ray Bailey.

Carolyn Alexander (argued), Assistant Attorney General, and Cecil A. RenicheSmith, Assistant Attorney General, Oregon Department of Justice, Salem, OR, for respondent-appellee Jean Hill.

Appeal from the United States District Court for the District of Oregon, Ann L Aiken, Chief District Judge, Presiding. D.C. No. 6:07-cv-00714-AA.

Before PAMELA ANN RYMER RONALD M. GOULD and JAY S BYBEE, Circuit Judges.

GOULD, Circuit Judge:

Steven Ray Bailey, an Oregon state prisoner, appeals the district court's denial of his habeas corpus petition, brought pursuant to 28 U.S.C. § 2254, challenging the state court's restitution order entered after Bailey's guilty plea to kidnapping and attempted assault. The district court denied Bailey's habeas petition and dismissed his case concluding that Bailey did not meet the "in custody" requirement of § 2254 because he challenged only the restitution order and, alternatively, because Bailey did not exhaust his state court remedies. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

In 2002 Steven Ray Bailey was indicted in Oregon state court on several counts arising from an armed confrontation involving him earlier that year. A settlement was reached and Bailey pleaded guilty to kidnapping and attempted assault. The settlement specified a total term of incarceration of 160 months. At a February 14, 2003, hearing, the state court ordered the State to file a restitution schedule within two weeks. On March 4 2003, more than two weeks later, the State filed its restitution schedule seeking $6,606.65 for "crime victim compensation" and medical bills. Bailey's counsel did not object to the restitution schedule and on March 13, 2003, the state court filed an amended judgment, 1 ordering Bailey to pay restitution in connection with the attempted assault charge.

Bailey sought post-conviction relief in the state court claiming, in relevant part that he was denied effective assistance of counsel in violation of his Sixth Amendment rights on the basis of his counsel's failure to object to the imposition of restitution as part of his sentence. The state court denied post-conviction relief and Bailey appealed to the Oregon Court of Appeals. The Oregon Court of Appeals rejected Bailey's appeal and the Oregon Supreme Court denied review.

Bailey thereafter filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Oregon, arguing that his counsel provided ineffective assistance by not objecting to the imposition of restitution. The district court denied Bailey's habeas petition after concluding that it lacked jurisdiction over Bailey's petition because Bailey did not meet § 2254(a)'s "in custody" requirement when he challenged only the restitution order, and that, in the alternative, Bailey did not exhaust his state court remedies. The district court dismissed Bailey's case on that basis. Bailey timely appeals the district court's order.

II

We review de novo a district court's decision to deny a petition for habeas corpus. Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir.2009). We review de novo a district court's determination that it does not have subject-matter jurisdiction over a habeas corpus petition. Puri v. Gonzales, 464 F.3d 1038, 1040 (9th Cir. 2006).2

III

We may not reach the merits of Bailey's habeas corpus claim unless we conclude that the district court had jurisdiction over Bailey's habeas corpus petition. See Wilson v. Belleque, 554 F.3d 816, 821 (9th Cir.2009).

28 U.S.C. § 2254(a) states:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application 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.

Section 2254(a)'s "in custody" requirement is jurisdictional and therefore "it is the first question we must consider." See Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir.1998) (stating the same as to 28 U.S.C. § 2241's "in custody" requirement).

We note that § 2254(a) deploys the term "in custody" twice. The first requirement is that the petition be filed "in behalf of a person in custody, " and the second is that the application for the writ of habeas corpus can only be entertained "on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C § 2254(a). Although the precedents that we review herein generally speak of the "in custody" requirement, it can be seen literally that this statutory requirement has two distinct aspects.

Section 2254(a)'s "in custody" requirement "has been interpreted to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petition-er is 'under the conviction or sentence under attack at the time his petition is filed.'" Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir.2005) (quoting Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam)). The petitioner must be in custody at the time that the petition is filed, see Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), but the petitioner's "subsequent release from custody does not itself deprive the federal habeas court of its statutory jurisdiction." Tyars v. Finner, 709 F.2d 1274, 1279 (9th Cir.1983). Physical custody is not indispensable to confer jurisdiction. "History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the Englishspeaking world to support the issuance of habeas corpus." Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). "[T]he boundary that limits the 'in custody' requirement is the line between a 'restraint on liberty' and a 'collateral consequence of a conviction.' " Williamson, 151 F.3d at 1183-84 (holding that a habeas petitioner challenging Washington's sex-offender registration law did not meet the "in custody" requirement because the law did not impose a significant restraint on the petitioner's liberty).

These above precedents go to the first statutory use of "in custody, " as courts assess whether there is a sufficient liberty restraint to consider a person as being "in custody." However, the second use of "in custody" in the statute requires literally that the person applying for the writ is contending that he is "in custody" in violation of the Constitution or other federal laws. Because in this case Bailey was in physical custody in state prison when he launched his habeas petition challenge to the restitution portion of his sentence, our primary focus is on the statute's second "in custody" requirement and whether Bailey is contending that his custody offends federal law.

A

We have repeatedly recognized that the imposition of a fine, by itself, is not sufficient to meet § 2254's jurisdictional requirements. Williamson v. Gregoire 151 F.3d 1180, 1183 (9th Cir.1998) ("[C]ourts hold that the imposition of a fine or the revocation of a license is merely a collateral consequence of conviction, and does not meet the 'in custody' requirement.") (gathering cases); see also Dremann v. Francis, 828 F.2d 6, 7 (9th Cir. 1987) (per curiam) (concluding that a lawyer's non-compliance with a "fine only" sentence that raised the threat of "possible imminent incarceration" was insufficient to confer habeas jurisdiction). Liability under a restitution order is "like a fine-only conviction" and "is not a serious restraint on... liberty as to warrant habeas relief." Tinder v. Paula, 725 F.2d 801, 805 (1st Cir. 1984); see also Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir.2003) ("The payment of restitution..., absent more, is not the sort of 'significant restraint on liberty' contemplated in the 'custody' requirement...."). Bailey does not argue, nor could he successfully do so in light of these precedents, that the payment of restitution alone is a significant restraint on his liberty.

Instead, Bailey argues that unlike the petitioners in Williamson, Dremann, Tinder, and Obado, Bailey is challenging the restitution order while physically in custody, and this additional fact, he argues, alters his petition from one not cognizable by the courts to one that is. Thus the question for us resolves to whether Bailey's physical custody when he filed his habeas petition, alone, permits him to challenge a restitution order via that habeascorpus petition. Stated another way, the key issue is whether a challenge to a restitution order by a custodial state prisoner who does not challenge the lawfulness of his custody under federal law is sufficient for jurisdiction under the federal habeas statute 28 U.S.C. § 2254.

Bailey's reliance on his physical custody is misplaced. The plain meaning of the text of 8 2254(a) makes clear that physical custody alone is insufficient to confer jurisdiction. Section 2254(a)'s language permitting a habeas petition to be entertained "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States, " (emphasis added), explicitly requires a nexus between the petitioner's claim and the unlawful nature of the custody. See Dickerson v. United States 530 U.S. 428, 439 n. 3, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) ("Habeas corpus proceedings are available only for claims that a person 'is in custody in violation of the Constitution or laws or...

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