Michael Washington v. Judy Smith ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4236
M ICHAEL L. W ASHINGTON,
Petitioner-Appellant,
v.
JUDY P. S MITH,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cv-00111-AEG—Aaron E. Goodstein, Magistrate Judge.
S UBMITTED JANUARY 30, 2009—D ECIDED M AY 8, 2009
Before M ANION, K ANNE, and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. A Wisconsin jury convicted
Michael Washington of forgery-uttering. He was sen-
tenced to serve two and a half years in prison and three
years of supervision. Additionally, the trial court ordered
Washington to pay restitution in the amount of $15,000,
as well as other fines and costs. After exhausting his
state remedies, Washington filed a petition for a writ of
habeas corpus. 28 U.S.C. § 2254. The district court denied
Washington’s petition, but certified an issue for appeal:
2 No. 08-4236
whether Washington’s attorney provided ineffective
assistance with respect to the restitution amount. The
district court denied relief on this claim because it
does not attack a custodial aspect of Washington’s sen-
tence and, thus, does not state a claim for relief under
the habeas corpus statutes. We agree and therefore affirm.
A state prisoner may obtain habeas corpus relief “only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
§ 2254(a). It is the custody itself that must violate the
Constitution. Accordingly, prisoners who are not seeking
earlier or immediate release are not seeking habeas
corpus relief. See, e.g., Wilkinson v. Dotson, 544 U.S. 74(2005); Daniels v. United States, 532 U.S. 374 (2001). An
alternate formulation of this basic principle is that a
habeas corpus petition must attack the fact or duration
of one’s sentence; if it does not, it does not state a
proper basis for relief under § 2254 or § 2255. Moran v.
Sondalle, 218 F.3d 647 (7th Cir. 2000).
There is no question that Washington was in custody
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 calculation 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
No. 08-4236 3
part of a criminal sentence. Id. at 706; see also Obado v. New
Jersey, 328 F.3d 716, 717 (3d Cir. 2003) (“[A] fine-only
conviction is not enough of a restraint on liberty to con-
stitute ‘custody’ within the meaning of the habeas corpus
statutes.”). Washington couches his claim in the sixth
amendment and, thus, adequately alleges a constitu-
tional violation. But should he win, the only possible
benefit 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. Washington’s
attack on counsel’s handling of the restitution amount
simply does not state a cognizable claim for relief under
§ 2254. See Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir.
2004) (“To say that a petitioner’s claim is not cognizable
on habeas review is thus another way of saying that
his claim presents no federal issue at all.”) (quotation
omitted).
The district court judgment is A FFIRMED.
5-8-09