Jones v. Johnson

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 1/11/18 ORDERING that unless petitioner files a notice of voluntary dismissal within 21 days of service of this order, the case will be automatically transferred to the District Court for the Central District of California. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENRY A. JONES,

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No. 2:18-cv-0036 AC P

Petitioner,

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v.

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R.C. JOHNSON,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
Petitioner is presently incarcerated at California State Prison, Los Angeles County. He is
serving a sentence for a conviction rendered by the Riverside County Superior Court.
The general rule with regard to habeas applications is that both the United States District

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Court in the district where petitioner was convicted and the District Court where petitioner is

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incarcerated have jurisdiction over the claims. See Braden v. 30th Judicial Circuit Court, 410

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U.S. 484 (1973). In the instant case, both petitioner’s conviction and his place of incarceration

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occurred in an area covered by the District Court for the Central District of California, making the

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Central District Court the proper venue for this case. Petitioner appears to acknowledge that

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venue is proper in the Central District, but requests that this court take jurisdiction because he

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believes the District Judge and Magistrate Judge who oversaw his previous habeas petition should
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recuse themselves and he asks that this case not be sent to the Central District. ECF No. 1 at 1-2,

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13.

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The Ninth Circuit has “held repeatedly that the challenged judge himself should rule on

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the legal sufficiency of a recusal motion in the first instance.” United States v. Studley, 783 F.2d

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934, 940 (9th Cir. 1986) (citing U.S. v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978) (collecting

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cases)). Petitioner’s request that Central District Judges recuse themselves is therefore not a

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proper ground for transferring venue to this court. Because venue does not lie in the Eastern

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District, the case should be transferred to the Central District. In light of petitioner’s explicit

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request that this case not be transferred to the Central District, however, petitioner will be given

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an opportunity to voluntarily dismiss the petition if he prefers dismissal to transfer. This court

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will not entertain any objections to the transfer and if petitioner declines to voluntarily dismiss the

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petition, the case will be automatically transferred to the Central District without further warning

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to petitioner.

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Accordingly, IT IS HEREBY ORDERED that unless petitioner files a notice of voluntary

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dismissal within twenty-one days of service of this order, the case will be automatically

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transferred to the District Court for the Central District of California.

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DATED: January 11, 2018

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