Viola v. Doe

Filing 3

ORDER DENYING PETITION FOR WRIT re 1 Petition for Writ of Habeas Corpus filed by Giuseppe Viola. Signed by Judge William Alsup on 12/21/12. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 12/21/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 12-6138 WHA (PR)

GIUSEPPE VIOLA,

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For the Northern District of California

United States District Court

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Petitioner,

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AD
PROSEQUENDUM

vs.
JOHN DOE,

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Respondent.
/

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Petitioner, an Arizona prisoner proceeding pro se, filed this petition for a writ of habeas

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corpus ad prosequendum. On February 16, 2012, a criminal judgment was entered against him

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in this court. See United States v. Viola, No. 10-cr-0588 EJD. His appeal from that judgment is

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now pending in the United States Court of Appeals for the Ninth Circuit. He has since been

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returned to state prison in Arizona to continue serving his state conviction. On October 26,

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2012, the Ninth Circuit granted his request to represent himself in his federal appeal in a federal

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case. In that order, the Ninth Circuit also ordered the Warden of the Arizona state prison where

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petitioner is currently incarcerated to provide him a typewriter and four hours per week of legal

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telephone calls.

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In the present petition, he alleges that the Warden is not complying with the Ninth

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Circuit’s order, and he seeks an order directing the United States Marshal to bring him from

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state prison in Arizona to this court to conduct a hearing to transfer him to an “appropriate”

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facility in the Bay Area where he can have access to “tools” and “resources” to allow him to
pursue his federal appeal.

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It is not clear whether this court has personal jurisdiction over petitioner’s custodian in

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Arizona. See Rumsfeld v. Padilla, 542 U.S. 426, 444 (2004) (in cases challenging present

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physical custody, jurisdiction requires the custodian resides within the territorial jurisdiction of

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the court); see, e.g., Hassain v. Johnson, 790 F.2d 1420, 1420 (9th Cir. 1986) (no jurisdiction in

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federal court in California to address habeas petition from inmate incarcerated in Arizona). It

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jurisdiction does lie here, the interests of justice do not require transferring him to a jail within

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this district because the Ninth Circuit has ordered the Warden of his current prison to provide

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him the tools and resources he needs to prosecute his appeal. To the extent that the Warden is

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not complying, petitioner may seek enforcement the Ninth Circuit’s order in the Ninth Circuit.
Accordingly, the petition is DENIED.

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For the Northern District of California

United States District Court

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: December

21 , 2012.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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