McKoy v. Dexter

Filing 4

ORDER OF TRANSFER. Signed by Judge Maxine M. Chesney on December 1, 2008. (mmcsec, COURT STAFF) (Filed on 12/1/2008)

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA KENTRIC DEVONE McKOY, Petitioner, vs. WARDEN DEBRA DEXTER, Respondent. ) ) ) ) ) ) ) ) ) ) C 08-5234 MMC(PR) ORDER OF TRANSFER (Docket No. 2) On November 19, 2008, petitioner, a California prisoner confined at Ironwood State Prison in Blythe, California, and proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Petitioner challenges the validity of the sentence he received in connection with his criminal conviction, obtained in the Superior Court of Sacramento County. He seeks leave to proceed in forma pauperis. Pursuant to 28 U.S.C. 2241(d), venue for a habeas action is proper in either the district of confinement or the district of conviction. See 28 U.S.C. 2241(d). Where the petition challenges a conviction or sentence, however, federal courts in California traditionally have chosen to hear such petition in the district of conviction. See Dannenberg v. Ingle, 831 F. Supp. 767, 767 (N.D. Cal. 1993); Laue v. Nelson, 279 F. Supp. 265, 266 (N.D. Cal. 1968); see also Habeas L.R. 2254-3(a)(1). Here, petitioner neither is confined nor was convicted in the Northern District. Rather, petitioner is confined in Riverside County, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which is located within the venue of the Central District of California, and was convicted in Sacramento County, which is located within the venue of the Eastern District of California. See 28 U.S.C. 84(b), (c). Consequently, venue is not proper in the Northern District. When venue is improper, the district court has the discretion to either dismiss the action or transfer it "in the interest of justice." See 28 U.S.C. 1406(a). Accordingly, in the interest of justice, the above-titled action is hereby TRANSFERRED to the district of conviction, the United States District Court for the Eastern District of California. In light of the transfer, this Court will defer to the Eastern District with respect to petitioner's application to proceed in forma pauperis. This order terminates Docket No. 2. IT IS SO ORDERED. DATED: December 1, 2008 _______________________ MAXINE M. CHESNEY United States District Judge 2

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