Aguero v. State of California Department of Corrections

Filing 4

ORDER TRANSFERRING CASE.. Signed by Judge Claudia Wilken on 10/6/08. (scc, COURT STAFF) (Filed on 10/6/2008)

1 2 3 4 5 6 7 8 9 10 United 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 DUANE AGUERO,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 08-01883 CW (PR) ORDER OF TRANSFER

Petitioner, v. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS, Respondent. /

Petitioner, a state prisoner, has filed a pro se petition for a writ of habeas corpus in which he challenges the execution of his sentence. He seeks leave to proceed in forma pauperis (IFP).

A petition for a writ of habeas corpus filed by a state prisoner in a State that contains two or more federal judicial districts may be filed in either the district of confinement or the district of conviction. See 28 U.S.C. § 2241(d). The district

court where the petition is filed, however, may transfer the petition to the other district in the furtherance of justice. id. See

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, 767 (N.D.

Cal. 1993); Laue v. Nelson, 279 F. Supp. 265, 266 (N.D. Cal. 1968). But if a habeas 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(a); Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989).

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

Petitioner is incarcerated at Deuel Vocational Institution, which lies within the venue of the Eastern District of California. See 28 U.S.C. § 84. Because Petitioner challenges the execution of

his sentence, the Court hereby ORDERS that pursuant to 28 U.S.C. § 1404(a) and Habeas L.R. 2254-3(b), and in the interests of justice, this petition be TRANSFERRED to the United States District Court for the Eastern District of California. Petitioner's IFP application is TERMINATED as moot. IT IS SO ORDERED. Dated: 10/6/08

CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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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 DUANE AGUERO, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-01883 CW CERTIFICATE OF SERVICE

STATE OF CALIFORNIA et al, Defendant. /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 6, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Duane Aguero P38260 Deul Vocational Institution JW124L P.O. Box 600 Tracy, CA 95378-0600 Dated: October 6, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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