Hurt v. Evans

Filing 13

ORDER TRANSFERRING CASE.. Signed by Judge ARMSTRONG on 12/8/08. (lrc, COURT STAFF) (Filed on 12/11/2008)

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, a state prisoner, has filed a pro se petition for a writ of habeas corpus. In an Order dated October 27, 2008, the Court granted Petitioner leave to proceed in forma pauperis status and issued an Order to Show Cause. Before the Court is Respondent's Motion to Transfer Venue to the District of Conviction. Respondent also asks the Court to vacate the Order to Show Cause. Federal statute allows "the Supreme Court, any justice thereof, the district courts and any circuit judge" to grant writs of habeas corpus "within their respective jurisdictions." 28 U.S.C. § 2241(a). A federal petition for a writ of habeas corpus made by a person in custody under the judgment and sentence of a State court is properly filed in either the district of confinement or the district of conviction. Id. § 2241(d). Where a case is filed in the wrong venue, the district court has the discretion to transfer it to the proper federal court "in the interest of justice." See 28 U.S.C. § 1406(a). Here, Petitioner challenges a conviction and sentence incurred in the Los Angeles County Superior Court, which is in the venue of the Western Division of the Central District of California. v. M.S. EVANS, Warden, Respondent. / RICKY R. HURT, Petitioner, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 08-02416 SBA (PR) ORDER OF TRANSFER

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

See 28 U.S.C. § 84. Accordingly, that is the proper venue for this action. Pursuant to 28 U.S.C. § 1406(a) and Habeas L.R. 2254-3(b), and in the interest of justice, the Clerk of the Court is ordered to TRANSFER this action forthwith to the Western Division of the United States District Court for the Central District of California. Accordingly, Respondent's Motion to Transfer Venue to the District of Conviction is GRANTED. However, the Court DENIES Respondent's request to vacate its October 27, 2008 Order to Show Cause. All proceedings in this action will be stayed pending the Central District court's review of this action after it has been transferred. This Order terminates Docket no. 12. All remaining motions are TERMINATED on this Court's docket as no longer pending in this district. IT IS SO ORDERED. DATED: 12/8/08 SAUNDRA BROWN ARMSTRONG UNITED STATES DISTRICT JUDGE

P:\PRO-SE\SBA\HC.08\Hurt2416.transfer.wpd 2

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

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

RICKY R. HURT, Plaintiff, v. M.S. EVANS et al, Defendant. /

Case Number: CV08-02416 SBA CERTIFICATE OF SERVICE

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 December 11, 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.

Ricky Ranay Hurt E-48858 Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960-1050 Dated: December 11, 2008 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

P:\PRO-SE\SBA\HC.08\Hurt2416.transfer.wpd 3