Perez v. Spearman

Filing 15

ORDER TRANSFERRING CASE to the Northern District of California signed by Magistrate Judge Sheila K. Oberto on 1/7/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 SAM PEREZ,

Case No. 1:14-cv-02052-LJO-SKO-HC

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ORDER TRANSFERRING CASE TO THE
NORTHERN DISTRICT OF CALIFORNIA

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Petitioner,
v.

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15 MARION E. SPEARMAN, Warden,
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Respondent.

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Petitioner is a state prisoner proceeding pro se and in forma

19 pauperia with a petition for writ of habeas corpus pursuant to 28
20 U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

21 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303.
22 Pending before the Court is the petition, which was filed in the
23 United States District Court for the Northern District of California
24 on September 23, 2014, and was transferred to this Court on December
25 19, 2014.
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The petition reflects that Petitioner is serving a six-year

27 sentence imposed in the Fresno County Superior Court in June 2010.
28 Petitioner is incarcerated at the Correctional Training Facility
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1 (CTF) at Soledad, California, which is located in Monterey County.
2 (Pet., doc. 1 at 1-2.)

Thus, Petitioner is incarcerated within the

3 Northern District of California.
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28 U.S.C. § 84(a).

Petitioner challenges findings resulting from a prison

5 disciplinary proceeding concerning Petitioner’s possession of
6 contraband (a wig) that occurred while Petitioner was incarcerated
7 at the CTF.

(Doc. 1-3 at 18-29.)

Thus, the disciplinary violation

8 and proceeding that form the basis of the instant petition occurred
9 at the CTF in the Northern District.
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Title 28 U.S.C. ' 2241(d) provides as follows which respect to

11 venue, jurisdiction, and transfer in a habeas proceeding pursuant to
12 28 U.S.C. ' 2254:
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Where an application for a writ of habeas corpus
is made by a person in custody under the judgment
and sentence of a State court of a State which
contains two or more Federal judicial districts,
the application may be filed in the district court
for the district wherein such person is in custody
or in the district court for the district
within which the State court was held which
convicted and sentenced him and each of such
district courts shall have concurrent jurisdiction
to entertain the application. The district court
for the district wherein such application is filed
in the exercise of its discretion and in furtherance
of justice may transfer the application to the
other district court for hearing and determination.
Although venue is generally proper in either the district of

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the prisoner=s confinement or the district of the convicting court=s
location, the preferred venue is the district of confinement where a

26 petition challenges a disciplinary decision made in the district of
27 the prisoner’s confinement:
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Venue in a habeas action is proper in either the district
of confinement or the district of conviction. See 28
U.S.C. § 2241(d). Federal courts in California
traditionally have chosen to hear petitions challenging a
conviction or sentence in the district of conviction. See
Dannenberg v. Ingle, 831 F.Supp. 767, 768 (N.D.Cal. 1993);
Laue v. Nelson, 279 F.Supp. 265, 266 (N.D.Cal. 1968).
However, if the petition is directed to the manner in
which a sentence is being executed, e.g., if it involves
parole or time credit claims, the district of confinement
is the preferable forum. See Habeas L.R. 2254–3(b)(2);
Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989).

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Brown v. Court of Appeals-Third District, No. C–11–3464 TEH (PR),
2012 WL 368376, at *1 (N.D.Cal. Feb. 3, 2012) (unpublished).

A

court should also consider traditional considerations of venue, such
as the convenience of parties and witnesses and the interests of
justice.

Braden v. 30th Judicial Circuit Court of Kentucky, 410

U.S. 484, 495 (1973).
Title 28 U.S.C. ' 1406(a) provides that if venue is improper,

16 the district court in which the case is filed shall dismiss the
17 case, or if it is in the interest of justice, transfer the case to
18 any district or division in which it could have been brought.

Title

19 28 U.S.C. ' 1631 provides that if a civil action is filed in a court
20 that lacks jurisdiction, the court shall, if it is in the interest
21 of justice, transfer the action to any other court in which the
22 action could have been brought when it was filed, and the action
23 shall proceed as if it had been filed in the court to which it is
24 transferred on the date on which it was actually filed in the
25 transferring court.
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The petition concerns not the propriety of Petitioner=s
conviction or sentence on his commitment offense, but rather the
execution of his sentence.

Even if this Court has jurisdiction, the
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petition concerns execution of Petitioner=s sentence.

The Northern

District, as the district in which the Petitioner is confined, would
be the appropriate venue for the action to proceed.

The Court finds

that the interests of justice would be served by transferring the
petition to the district of Petitioner=s confinement pursuant to 28
U.S.C. ' 1406(a) and 2241(d).
Accordingly, it is ORDERED that the petition be transferred to
the United States District Court for the Northern District of
California.

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12 IT IS SO ORDERED.
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Dated:

January 7, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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