Thomas v. Martel

Filing 2

ORDER TRANSFERRING CASE to the United States District Court for the Northern District of California signed by Magistrate Judge Michael J. Seng on 5/25/2011. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL EUGENE THOMAS,

1:11-cv-00837-MJS (HC)

Petitioner,

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ORDER TRANSFERRING CASE TO
THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA

vs.
M. MARTEL, Warden,
Respondent.

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/

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Petitioner, a state prisoner proceeding pro se, has filed a habeas corpus action

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pursuant to 28 U.S.C. § 2254, in which he challenges a decision reached by the Board of

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Parole Hearings regarding his suitability for parole. Petitioner has not paid the $5.00 filing fee

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or submitted an application to proceed in forma pauperis for this action.

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The federal venue statute requires that a civil action, other than one based on diversity

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jurisdiction, be brought only in “(1) a judicial district where any defendant resides, if all

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defendants reside in the same state, (2) a judicial district in which a substantial part of the

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events or omissions giving rise to the claim occurred, or a substantial part of the property that

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is the subject of the action is situated, or (3) a judicial district in which any defendant may be

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found, if there is no district in which the action may otherwise be brought.” 28 U.S.C. §

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1391(b).

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However, venue for a habeas action is proper in either the district of confinement or the
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district of conviction. 28 U.S.C. § 2241(d). The district court for the district wherein such an

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application is filed in the exercise of its discretion and in furtherance of justice may transfer the

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application to the other district court for hearing and determination. Id.

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It is preferable for petitions challenging a conviction or sentence to be heard in the

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district of conviction while petitions challenging the manner in which the sentence is being

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executed be heard in the district of confinement. Dunne v. Henman, 875 F.2d 244, 249 (9th

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Cir. 1989). In this case, Petitioner was convicted in Kern County, which is located within the

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Eastern District of California. He is currently incarcerated at San Quentin State Prison, in

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Marin County, which lies within the Northern District of California. Because the instant petition

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is premised on events relating to Petitioner's parole proceedings, the court construes it as a

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challenge to the execution of petitioner's sentence, as opposed to an attack on the conviction

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itself. Thus, this matter should be addressed in the forum where petitioner is confined.

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Therefore, the petition should have been filed in the United States District Court for the

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Northern District of California. In the interest of justice, the petition will be transferred to the

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United States District Court for the Central District of California. 28 U.S.C. §§ 1404(a) and

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2241(d).
Accordingly, IT IS HEREBY ORDERED that this matter is transferred to the United

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States District Court for the Northern District of California.

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IT IS SO ORDERED.

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Dated:
92b0h

May 25, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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