Brownlee v. Rommoro

Filing 17

ORDER of INTRADISTRICT TRANSFER from Sacramento (2:14-cv-1249 KJM KJN) to Fresno (1:14-cv-1990 SAB) signed by Magistrate Judge Kendall J. Newman on 12/12/14. (Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TERRENCE BROWNLEE,

12
13
14
15

No. 2: 14-cv-1249 KJM KJN P

Petitioner,
v.

ORDER

LYDIA ROMMORO,
Respondent.

16
17

Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ

18

of habeas corpus pursuant to 28 U.S.C. § 2254. On July 21, 2014, the undersigned recommended

19

that this action be dismissed as a successive petition. (ECF No. 12.) After reviewing petitioner’s

20

objections, the undersigned vacates the findings and recommendations and orders this action

21

transferred to the Fresno Division of the United States District Court for the Eastern District of

22

California for the reasons stated herein.

23

In the July 27, 2014, amended petition, petitioner alleges that in 1980 he entered a plea

24

bargain in Fresno Superior Court pursuant to which he was sentenced to fifteen years

25

imprisonment and five years parole. (ECF No. 8.) Petitioner alleges that his plea bargain has

26

been violated because he is being treated as if he was sentenced to fifteen years to life. (Id.)

27
28

Petitioner is incarcerated at Folsom State Prison, which is located within the Sacramento
Division of the Eastern District. Because petitioner appeared to challenge the execution of his
1

1

sentence, the undersigned determined that venue was proper in the Sacramento Division. See

2

Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989) (“The proper forum to challenge the

3

execution of a sentence is the district where the prisoner is confined.”)

4

The undersigned recommended that this action be dismissed because court records

5

revealed that petitioner had filed several petitions containing the same claim as raised in the

6

amended petition or slightly altered variations. See 1: 05-cv-0949 REC SMS P, 1: 06-cv-0320

7

OWW SMS P, 1: 09-cv-0765 OWW SMS P, 2: 10-cv-0925 LKK KJM P, 2: 10-cv-3478 GGH P.

8

All of these petitions were denied as successive or time barred.

9

In his affidavit filed in support of his objections, petitioner alleges that he is challenging

10

an amended judgment ordered by the Fresno County Superior Court on March 14, 2013. (ECF

11

No. 16.) A copy of the order by the Fresno County Superior Court ordering the amended

12

judgment is attached as an exhibit to petitioner’s affidavit. The order states,

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Petitioner contends that his right to file an adequate petition has
been denied for more than 30 years because the Fresno County
Superior Court refuses to provide petitioner with a record or
transcript of his plea bargain. Petitioner argues that, on August 4,
1980, he entered a plea in exchange for a 15-year sentence and a 5
year parole term, but has been held in prison for over 32 years.
However, first, petitioner has failed to present any evidence
demonstrating that petitioner’s previous petitions challenging his
conviction and sentence were denied because petitioner failed to
attach case documents or portions of his transcript to his petitions.
Therefore, the Court finds that petitioner has not established that his
rights have been violated.
Second, to the extent that petitioner is requesting in his petition that
the court provide him with a “record or transcript of his plea
bargain,” petitioner’s request is improper. The purpose of a writ of
habeas corpus is “solely to effect ‘discharge’ from unlawful
restraint.” (In re Chessman (1955) 44 Cal.2d 1, 5-6; see Penal
Code § 1473 (a).) In other words, a petitioner may bring a petition
for a writ of habeas corpus to challenge the legality of the
petitioner’s confinement or the conditions of that confinement. As
Petitioner’s request for a “record or transcript of his plea bargain” is
not a challenge to the propriety of petitioner’s imprisonment or to
the conditions of that confinement, petitioner’s request is not a
proper ground for habeas corpus relief.
Consequently, the petition is denied.
The Court notes that the Judgment of Commitment to State Prison
and Minute Order issued on August 21, 1980 contains an error in
2

regard to Petitioner’s sentence.
While the Judgment of
Commitment to State Prison and Minute Order states that petitioner
was sentenced to 15 years to life, the trial court actually sentenced
petitioner to a total sentence of 17 years to life. (RPO & Judgment,
6: 9-13; Judgment of Commitment to State Prison and Minute
Order, p. 1, No. 3(a).) The court here orders the clerk of this Court
to issue an Amended Abstract of Judgment and corrected minute
order in conformity with the judgment orally pronounced by the
trial court on August 4, 1980. Further the Court orders the clerk of
this Court to forward certified copy of the Amended Abstract of
Judgment and correct minute order to the California Department of
Corrections and Rehabilitation and a copy of both documents to
petition.

1
2
3
4
5
6
7
8

(ECF No. 16 at 4-6.)
Because petitioner makes clear that he is challenging the amended judgment issued from

9
10

the Fresno County Superior Court, and he was convicted in Fresno County, venue is proper in the

11

Fresno Division. See Laue v. Nelson, 279 F.Supp. 265, 266 (N.D. Cal. 1968) (although venue is

12

generally proper in either the district of the prisoner’s confinement or the convicting court’s

13

location, petitions challenging a conviction preferably are heard in the district of conviction).1 In

14

other words, petitioner’s objections indicate that petitioner no longer challenges the execution of

15

his sentence. Instead, petitioner appears to challenge the Superior Court’s order confirming that

16

petitioner received a life sentence and amending the judgment to reflect the correct sentence.
Pursuant to Local Rule 120(f), a civil action which has not been commenced in the proper

17
18

division of a court may, on the court’s own motion, be transferred to the proper division of the

19

court. Therefore, this action will be transferred to the Fresno Division of the court. All pending

20

motions are vacated.

21

Good cause appearing, IT IS HEREBY ORDERED that:

22

1. The July 21, 2014 findings and recommendations (ECF No. 12) are vacated;

23

2. Plaintiff’s motions to compel (ECF No.s 3, 9, 11) and motion for certificate of

24

appealability (ECF No. 14) are vacated;

25

1

26
27
28

The Fresno Division is best suited to determine whether petitioner should file a second
amended petition clarifying his claims challenging the amended judgment, whether those claims
are exhausted and whether a petition challenging the amended judgment is a successive petition.
See Magwood v. Patterson, 561 U.S. 320 (2010) (holding that the rules prohibiting successive
petitions do not apply to a petition challenging for the first time a new judgment imposed after
resentencing); Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012).
3

1
2
3
4

3. This action is transferred to the United States District Court for the Eastern District of
California sitting in Fresno; and
4. All future filings shall reference the new Fresno case number assigned and shall be
filed at:
United States District Court
Eastern District of California
2500 Tulare Street
Fresno, CA 93721

5
6
7
8

Dated: December 12, 2014

9
10

Brown1249.109

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4