Torres v. Kernan
- Phyllis Hamilton
- 4:20-cv-03159
- U.S. District Court · Northern District of California
- 4
In Torres v. Kernan, Judge Hamilton lifted the stay and dismissed Torres’s habeas petition with leave to amend because restitution did not affect custody.
Mario Torres, who represented himself, must amend his federal petition if he wishes to continue the action; Scott Kernan is the named defendant.
What happened
Mario Torres, a former California prisoner representing himself, challenged restitution imposed during his 2018 resentencing after he pleaded guilty in 2015. The federal court had stayed his petition so he could pursue additional claims in state court.
The court concluded that claims challenging only restitution did not meet the federal custody requirement because changing or canceling the restitution fine would not change the restraint on his liberty. The court also required Torres to explain how requiring restitution, after he agreed to pay it in his plea agreement, supported a valid federal claim.
Judge Phyllis J. Hamilton granted Torres’s motion to lift the stay and lifted the stay. She dismissed the petition with leave to amend, requiring an amended petition by June 18, 2021, and stating that failure to amend could result in dismissal.
The detailed version
- Torres v. Kernan · No. 4:20-cv-03159
- Phyllis Hamilton
- May 20, 2021
Background
Mario Torres, a former California prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254, the federal law allowing a person in state custody to challenge custody based on a violation of federal law. The petition had been stayed while Torres pursued further claims in state court. Torres moved to lift the stay and stated that his claims were exhausted.
Torres stated that he pleaded guilty on February 5, 2015, and was resentenced on October 3, 2018, without his knowledge or consent. He said restitution was imposed at resentencing. The written 2015 plea agreement stated that he understood the conviction would require him to pay restitution. Torres was no longer incarcerated.
The court had previously dismissed the original petition with leave to amend so Torres could clarify his claims and show that they raised claims recognizable under federal law. Before filing an amended petition, he requested the stay. The court lifted the stay but found that he still needed to file an amended petition.
Claims and analysis
Torres claimed that the restitution order violated the Fifth, Eighth, and Fourteenth Amendments. The court explained that a federal petition under Section 2254 must satisfy two custody requirements: the petitioner must be subject to a restraint on liberty, and the claim must be connected to the unlawful nature of that custody.
The court held that Torres’s claims challenged only the restitution portion of his sentence. Even if the restitution fine were set aside, that change would not affect a restraint on his liberty. The court noted that Torres was already out of custody. It also discussed the possibility that he remained on parole, but stated that setting aside restitution would not affect the other parole conditions or the restraint they imposed.
The court further directed Torres to provide more information explaining how requiring him to pay restitution could support a valid federal claim when he had agreed to pay restitution as part of his guilty plea.
Disposition
The court granted the motion to lift the stay and lifted the stay. It dismissed the petition with leave to amend under the standards described in the order. The amended petition had to be filed by June 18, 2021, and had to identify itself as an “AMENDED PETITION” on the first page. The court stated that failure to amend by that deadline would result in dismissal. It also ordered Torres to keep the court informed of address changes and comply with court orders, warning that failure to do so could result in dismissal for failure to prosecute.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.