In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4236

MICHAEL L. WASHINGTON,

Petitioner-Appellant,

v.

JUDY P. SMITH,

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.

SUBMITTED JANUARY 30, 2009—DECIDED MAY 8, 2009

Before MANION, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. A Wisconsin jury convicted

Michael Washington of forgery-uttering. He was sentenced 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 sentence 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 constitute ‘custody’ within the meaning of the habeas corpus

statutes.”). Washington couches his claim in the sixth

amendment and, thus, adequately alleges a constitutional 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 AFFIRMED.

5-8-09