McNeely v. McGinness

Filing 20

ORDER TRANSFERRING CASE.. Signed by Judge Claudia Wilken on 8/24/09. (scc, COURT STAFF) (Filed on 8/24/2009)

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 v. JOHN MCGINNESS, Respondent. / DOCK MCNEELY, Petitioner, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 09-01203 CW (PR) ORDER OF TRANSFER

This is a habeas case which was transferred here from the United States District Court for the Eastern District of California. Petitioner originally filed his pro se petition for a

writ of habeas corpus in the Eastern District of California on January 22, 2009. sentence. His petition challenges the execution of his

He also filed a motion for leave to proceed in forma

pauperis (IFP). On March 13, 2009, Magistrate Judge Dale A. Drozd of the United States District Court for the Eastern District of California issued an Order transferring Petitioner's action to this Court. This transfer was proper because Petitioner had been moved to Napa State Hospital, which is in the venue of the Northern District of California. See 28 U.S.C. § 84.

Petitioner's motion for leave to proceed IFP was granted by this Court on April 27, 2009. On June 15, 2009, Petitioner filed a Notice of Change of Address informing the Court that he had been transferred back to the Sacramento County Main Jail. A petition for a writ of habeas corpus filed by a state

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

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 -- or in the present case, where the petition was transferred -- may transfer the petition to the other district in the furtherance of justice. See id. 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). Petitioner is currently incarcerated at the Sacramento County Main Jail, 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. All remaining motions are TERMINATED on this Court's docket as no longer pending in this district. IT IS SO ORDERED. Dated: 8/24/09

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 DOCK MCNEELY, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-01203 CW CERTIFICATE OF SERVICE

JOHN MCGINNESS 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 August 24, 2009, 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.

Dock McNeely X-2333938 Sacramento Main Jail 651 "I" Street Sacramento, CA 95814 Dated: August 24, 2009 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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