Bailey v. Hill

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN RAY BAILEY,  No. 09-35450
Petitioner-Appellant,
v.  D.C. No.
6:07-cv-00714-AA
JEAN HILL,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding

Argued and Submitted
February 2, 2010—Seattle, Washington

Filed March 25, 2010

Before: Pamela Ann Rymer, Ronald M. Gould and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Gould

4859
 BAILEY v. HILL 4861

COUNSEL

Nell Brown, Assistant Federal Public Defender, Federal Pub-
lic Defender’s Office, Portland, Oregon, for petitioner-
appellant Steven Ray Bailey.

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

OPINION

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 kidnap-
ping 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.
4862 BAILEY v. HILL
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 assis-
tance 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 Bai-
ley’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 pro-
vided ineffective assistance by not objecting to the imposition
of restitution. The district court denied Bailey’s habeas peti-
tion after concluding that it lacked jurisdiction over Bailey’s
petition because Bailey did not meet § 2254(a)’s “in custody”
1
A second amended judgment dated August 25, 2003, was subsequently
filed reflecting that Bailey had been convicted of attempted assault rather
than the completed crime of assault as indicated in the first amended judg-
ment.
 BAILEY v. HILL 4863
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 jurisdic-
tion over Bailey’s habeas corpus petition. See Wilson v. Belle-
que, 554 F.3d 816, 821 (9th Cir. 2009).

[1] 28 U.S.C. § 2254(a) states:

The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an applica-
tion 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
2
Although the district court concluded that it did not have jurisdiction,
the district court denied Bailey’s petition rather than dismiss it, and the
district court subsequently dismissed the case. Our review is de novo, and
ultimately we are reviewing the dismissal of the case.
4864 BAILEY v. HILL
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).

[2] 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 enter-
tained “on the ground that [the petitioner] is in custody in vio-
lation 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” require-
ment, 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 petitioner is ‘under the con-
viction 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 (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 (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 con-
fer 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 pub-
lic generally, which have been thought sufficient in the
English-speaking world to support the issuance of habeas cor-
pus.” Jones v. Cunningham, 371 U.S. 236, 240 (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”
 BAILEY v. HILL 4865
requirement because the law did not impose a significant
restraint on the petitioner’s liberty).

[3] These above precedents go to the first statutory use of
“in custody,” as courts assess whether there is a sufficient lib-
erty restraint to consider a person as being “in custody.” How-
ever, 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 cus-
tody in state prison when he launched his habeas petition
challenge to the restitution portion of his sentence, our pri-
mary focus is on the statute’s second “in custody” require-
ment and whether Bailey is contending that his custody
offends federal law.

A

[4] We have repeatedly recognized that the imposition of
a fine, by itself, is not sufficient to meet § 2254’s jurisdic-
tional 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 conse-
quence of conviction, and does not meet the ‘in custody’
requirement.”) (gathering cases); see also Dremann v. Fran-
cis, 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 suc-
cessfully do so in light of these precedents, that the payment
of restitution alone is a significant restraint on his liberty.
4866 BAILEY v. HILL
Instead, Bailey argues that unlike the petitioners in William-
son, Dremann, Tinder, and Obado, Bailey is challenging the
restitution order while physically in custody, and this addi-
tional fact, he argues, alters his petition from one not cogniza-
ble 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 restitu-
tion order via that habeas corpus 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 lawful-
ness of his custody under federal law is sufficient for jurisdic-
tion 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 § 2254(a) makes clear that physi-
cal custody alone is insufficient to confer jurisdiction. Section
2254(a)’s language permitting a habeas petition to be enter-
tained “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 (2000) (“Habeas corpus proceedings are available only for
claims that a person ‘is in custody in violation of the Constitu-
tion or laws or treaties of the United States.’ ” (quoting 28
U.S.C. § 2254(a))).

[5] The United States Supreme Court has declared that
where a statute does not define its terms, and here that might
be said about the statutory phrase “in custody in violation of
the Constitution or laws or treaties of the United States,” we
are to give such a phrase its ordinary or natural meaning. See
Johnson v. United States, 130 S. Ct. 1265, No. 08-6925, 2010
U.S. LEXIS 2201, at *10-11 (March 2, 2010); Bailey v.
United States, 516 U.S. 137, 144-45 (1995). Giving the cru-
cial statutory phrase within § 2254(a) its ordinary, natural
meaning, we cannot but conclude that to sustain his habeas
challenge, Bailey must show that his custody in itself, or its
 BAILEY v. HILL 4867
conditions, offends federal law. It is not enough for Bailey to
say, in substance, my custody is okay and consistent with fed-
eral law, but I should not be burdened by this restitution
requirement. What Bailey is required to pay in restitution is
not by ordinary meaning a part of his custody.

The Supreme Court, construing § 2254(a)’s “in custody”
requirement, has recognized that its purpose is to permit peti-
tions only when the remedy sought is capable of alleviating
severe restraints on individual liberty:

The custody requirement of the habeas corpus
statute is designed to preserve the writ of habeas cor-
pus as a remedy for severe restraints on individual
liberty. Since habeas corpus is an extraordinary rem-
edy whose operation is to a large extent uninhibited
by traditional rules of finality and federalism, its use
has been limited to cases of special urgency, leaving
more conventional remedies for cases in which the
restraints on liberty are neither severe nor immedi-
ate.

Hensley v. Mun. Court, 411 U.S. 345, 351 (1973) (emphasis
added). Commentators have also taken note of § 2254(a)’s
requirement of a nexus between the petitioner’s claim and the
unlawful nature of the custody. See 1 Randy Hertz & James
S. Liebman, Federal Habeas Corpus Practice and Procedure
§ 9.1, at 437-38 & n.2 (5th ed. 2005) (stating that habeas cor-
pus jurisdiction under § 2254(a) requires that “the substance
of the claim being asserted . . . must challenge the legality of
custody on the ground that it is, or was imposed, ‘in violation
of the Constitution or laws or treaties of the United States’ ”
(quoting 28 U.S.C. § 2254(a))); id. at 438 & n.6 (concluding
that habeas corpus “[c]laims that do not ‘call into question the
lawfulness of conviction or confinement’ or challenge the
fact, length, or conditions of the petitioner’s custody or ‘seek
immediate or speedier release’ ” are not cognizable (quoting
Heck v. Humphrey, 512 U.S. 477, 481-83 (1994))).
4868 BAILEY v. HILL
[6] Bailey’s challenge to the restitution order lacks any
nexus, as required by the plain text of § 2254(a), to his cus-
tody. While Bailey’s liberty has been severely restrained by
his conviction and custodial sentence, the remedy that Bailey
seeks, the elimination or alteration of a money judgment, does
not directly impact—and is not directed at the source of the
restraint on—his liberty. If successful, Bailey could reduce his
liability for restitution but would still have to serve the rest of
his custodial sentence in the same manner; his remedy would
affect only the fact or quantity of the restitution that he has to
pay to the victim. Bailey’s argument is only that he has been
ordered to pay restitution “in violation of the Constitution or
laws or treaties of the United States,” 28 U.S.C. § 2254(a),
and not that his custody is unlawful. That he is in physical
custody while attacking the restitution order is insufficient to
confer jurisdiction over his habeas petition.

B

Our construction of § 2254(a)’s plain meaning is in accord
with the Seventh Circuit’s construction—the only circuit to
have addressed the issue before us on this appeal.

In Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008), the
Seventh Circuit examined the plain text of § 2254(a) and con-
cluded that its language precludes courts from reviewing a
challenge to a non-custodial portion of a criminal sentence:

Section 2254 authorizes federal courts to “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.” 28 U.S.C. § 2254(a) (emphasis
added). The plain language of the statute therefore
commands that courts entertain habeas petitions
“only” on the ground that a prisoner is “in custody,”
and, by linking a court’s ability to entertain a habeas
 BAILEY v. HILL 4869
petition to the particular relief sought, the language
of the statute prevents consideration of pendent chal-
lenges.

Id. at 721. The Seventh Circuit thus held that a petitioner’s
constitutional challenge brought under § 2254 to the non-
custodial component of his sentence—that the petitioner reg-
ister as a sex offender—was insufficient to create a cogniza-
ble claim. Id. at 717, 722.

Building on that premise, the Seventh Circuit subsequently
addressed the issue raised in this appeal—whether a state
habeas petitioner’s Sixth Amendment challenge to a restitu-
tion order, brought pursuant to § 2254, is cognizable. See
Washington v. Smith, 564 F.3d 1350, 1350 (7th Cir. 2009). In
Washington, the Seventh Circuit, applying persuasive reason-
ing, concluded that such a claim is not cognizable under
§ 2254:

There is no question that Washington was in cus-
tody pursuant to a state court judgment when he filed
his petition: he was serving his two and a half year
sentence of imprisonment and, according to our
docket, still is. But Washington’s petition—at least
the claim certified for appeal—attacks only the cal-
culation of the amount he owes in restitution. In
Barnickel v. United States, 113 F.3d 704 (7th Cir.
1997), this court ruled that a § 2255 motion—the
federal prisoner’s equivalent to a § 2254 petition
attacking a criminal judgment entered by a state
court—is unavailable to challenge a restitution order
imposed as part of a criminal sentence. Id. at 706[.]
Washington couches his claim in the sixth amend-
ment and, thus, adequately alleges a constitutional
violation. But should he win, the only possible bene-
fit to him will be a lower payment to his victim; he
will still be obligated to serve two and a half years
in prison and three years on supervision. Washing-
4870 BAILEY v. HILL
ton’s attack on counsel’s handling of the restitution
amount simply does not state a cognizable claim for
relief under § 2254.

Id. at 1351 (internal citation omitted).

[7] We agree with the Seventh Circuit’s approach and con-
clude that § 2254(a) does not confer jurisdiction over a state
prisoner’s in-custody challenge to a restitution order imposed
as part of a criminal sentence.

C

Our conclusion is reinforced by our decisions holding that
federal prisoners may not collaterally attack restitution orders
under 28 U.S.C. § 2255—the federal counterpart to § 2254. In
United States v. Kramer, 195 F.3d 1129 (9th Cir. 1999), we
held that a federal prisoner cannot challenge a restitution
order on constitutional grounds under § 2255 because “by its
plain terms, § 2255 is available only to defendants who are in
custody and claiming the right to be released.” Id. at 1130. In
United States v. Thiele, 314 F.3d 399 (9th Cir. 2002), extend-
ing Kramer, we held that a federal prisoner could not, under
§ 2255, use his physical custody and the fact that he was seek-
ing release from custody on other grounds to “run interference
for non-cognizable [restitution] claims.” Id. at 402.

Bailey argues that textual differences between §§ 2254(a)
and 2255(a) compel the conclusion that Thiele’s and
Kramer’s reasoning should not apply to a state prisoner’s
challenge to a restitution order brought under § 2254. We dis-
agree. The import of the textual differences between
§ 2254(a) and § 2255(a), as they pertain to this case, is that
§ 2254(a), but not § 2255(a), permits a challenge to the execu-
tion of a custodial sentence.3 See White v. Lambert, 370 F.3d
3
The main textual differences between §§ 2254(a) and 2255(a) are the
provisions’ descriptions of the claims that courts are authorized to enter-
 BAILEY v. HILL 4871
1002, 1009 (9th Cir. 2004) (explaining that “28 U.S.C.
§ 2255, the federal counterpart to § 2254, is expressly written
to prevent attacks on the execution of the sentence” and
describing challenges to the execution of a sentence to include
“ ‘challenges . . . that implicate the fact or duration of confine-
ment but do not stem from the original conviction or sen-
tence’ ” (emphasis added) (quoting Walker v. O’Brien, 216
F.3d 626, 632-33 (7th Cir. 2000))).4 This difference is imma-
terial here because an attack on a restitution order is not an
attack on the execution of a custodial sentence.5 As applied to
the issue presented to us, §§ 2254(a) and 2255(a) are suffi-
ciently analogous that Thiele and Kramer support our conclu-
sion that § 2254(a) does not confer jurisdiction over a
challenge to a restitution order. Certainly, nothing in these

tain: § 2254(a) refers to claims that the petitioner is “in custody pursuant
to the judgment of a State court . . . in violation of [federal law]” whereas
§ 2255(a) refers to claims that the federal prisoner has “the right to be
released upon the ground that the sentence was imposed in violation of
[federal law].”
4
Bailey notes our statement in White that “[§ 2254’s ‘in custody pursu-
ant to the judgment of a State court’] clause . . . direct[s] a status inquiry
into the source of the petitioner’s custody, and not an inquiry into the tar-
get of the petitioner’s challenge.” 370 F.3d at 1007-08. Bailey urges that
because the source of his custody is a state court judgment, it is irrelevant
that the target of his challenge is the restitution order. Bailey misunder-
stands our discussion in White. There, we were faced with the question of
whether a state prisoner who challenges a prison transfer but who does not
challenge the underlying state court judgment, can file a petition pursuant
to § 2241 or whether the petitioner must proceed under § 2254. Id. at
1005. We concluded that because the source of the petitioner’s custody
was the state court judgment, § 2254, and not § 2241, applied. Id. at 1005,
1009-10. We had no opportunity in White to pass on the issue presented
in this appeal, whether a challenge to a restitution order by a custodial
state prisoner who does not challenge the lawfulness of custody under fed-
eral law is sufficient to support jurisdiction under the federal habeas stat-
ute of § 2254.
5
Bailey notes that the restitution order is part of his sentence imposed
by the amended judgment. That the restitution order is contained in the
same judgment that delivers Bailey’s custodial sentence does not show
that Bailey is claiming that his custody is in violation of federal law.
4872 BAILEY v. HILL
statutory differences would prompt us to disregard the plain
language of § 2254(a) and permit a federal court challenge by
a state prisoner that was not premised on his or her custody
being in violation of federal law.

D

Bailey directs us to several federal case authorities that he
contends support his view that § 2254(a) confers jurisdiction
to a state prisoner’s collateral attack upon a restitution order.
All of the cases that he cites involved a prisoner who, unlike
Bailey, contended that the custody itself violated the Constitu-
tion or other federal law. Accordingly, the particular sen-
tences or snippets of these opinions on which Bailey rests his
jurisdictional argument are merely dicta. None of the cases
can persuade us to disregard the plain language of § 2254(a)
with its requirement that a state prisoner asserting a habeas
claim, for jurisdiction, must allege that his or her custody is
in violation of federal law. None persuade us to part company
with the Seventh Circuit and create a circuit split by interpret-
ing § 2254(a) in a non-literal manner.6
6
First, Bailey urges that the Supreme Court established in Carafas v.
LaVallee, 391 U.S. 234 (1968), that “the [habeas] statute does not limit the
relief that may be granted to discharge of the applicant from physical cus-
tody.” Id. 239. In Carafas, the petitioner challenged his conviction in a
habeas petition that he filed while he was incarcerated, establishing the
district court’s jurisdiction. Id. at 236. The petitioner’s sentence, however,
expired during the petitioner’s appeal. Id. The Court concluded that the
case was not moot because the petitioner, though no longer in custody,
was still burdened by the “consequences of his conviction,” id. at 237, and
that jurisdiction was not defeated under those circumstances, id. at 238.
Nothing in Carafas suggests that habeas corpus jurisdiction can be estab-
lished, in the first instance, through a challenge to a restitution order that
is not joined with a challenge to the lawfulness of custody under federal
law.
Second, Bailey relies on a passage from Maleng v. Cook, 490 U.S. 488
(1989) (per curiam), stating that § 2254(a) “requir[es] that the habeas peti-
tioner be ‘in custody’ under the conviction or sentence under attack at the
 BAILEY v. HILL 4873
Given the plain text of § 2254(a), and consistent with the
Seventh Circuit’s decision in Washington v. Smith, 564 F.3d
1350 (7th Cir. 2009), and our reasoning in United States v.
Thiele, 314 F.3d 399 (9th Cir. 2002), and United States v.
Kramer, 195 F.3d 1129 (9th Cir. 1999), we hold that
§ 2254(a) does not confer jurisdiction over a habeas corpus
petition raising an in-custody challenge to a restitution order.7

IV

[8] Because courts do not have jurisdiction over a habeas
corpus petition brought pursuant to § 2254 challenging only
a restitution order, the district court lacked jurisdiction over
Bailey’s habeas petition. The district court’s order denying

time his [or her] petition is filed.” Id. at 490-91 (citing Carafas, 391 U.S.
at 238). Bailey was in physical custody when he attacked the restitution
order, but he was not “in custody” under the restitution order, the target
of his attack.
Third, Bailey points to Spencer v. Kemna, 523 U.S. 1 (1998), reciting
that the petitioner “was incarcerated by reason of the parole revocation at
the time the petition was filed, which is all the ‘in custody’ provision of
28 U.S.C. § 2254 requires.” Id. at 7 (citing Carafas and Maleng). But in
Spencer, the petitioner was attacking the parole revocation on due process
grounds, which necessarily meant he was attacking the source of his incar-
ceration, id. at 4-5, and thus was claiming that his incarceration violated
federal law. This is not so here.
Fourth, Bailey quotes a sentence from Abdala v. INS, 488 F.3d 1061
(9th Cir. 2007), where we cited Spencer for the proposition that “the ‘in
custody’ provision of 28 U.S.C. § 2254 requires only that a petitioner be
incarcerated . . . at the time a habeas petition is filed.” Id. at 1064. We
think implicit in this sentence, or alternatively not considered at all in that
case, is the literal statutory limitation that a petitioner must make a claim
that he or she is in custody in violation of the law, see 28 U.S.C.
§§ 2241(c), 2254(a), as the petitioner there clearly did by challenging his
detention at an INS facility on statutory and due process grounds, see 488
F.3d at 1063. Bailey makes no such claim.
7
Because there is no habeas jurisdiction, we do not reach or decide Bai-
ley’s remaining arguments or the merits of Bailey’s petition.
4874 BAILEY v. HILL
Bailey’s petition for habeas corpus and dismissing his case is
AFFIRMED.