Flores v. Immigration and Naturalization Service, et al

Filing 9

ORDER TRANSFERRING CASE., ***Civil Case Terminated.. Signed by Judge ARMSTRONG on 5/13/11. (lrc, COURT STAFF) (Filed on 5/16/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROMULO H. FLORES,

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No. C 11-00370 SBA (PR)
ORDER OF TRANSFER

Petitioner,

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v.
IMMIGRATION AND NATURALIZATION
SERVICE, HOMELAND SECURITY,

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Respondents.
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United States District Court
For the Northern District of California

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The following background is taken from the Court's February 18, 2011 Order:

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On January 25, 2011, Petitioner, who is currently being held at Chino State
Prison,1 filed a document with the Court in the instant case entitled, "Application
for Waiver," which was opened as a civil rights action. He did not pay the filing fee
or file an in forma pauperis (IFP) application. The Clerk of the Court sent him a
notice that he had not filed a complaint or petition, and informed him that if he
intended to commence a new case he must file one within thirty days. The Clerk
also sent Petitioner a notice directing him to pay the filing fee or to file a completed
IFP application, also within thirty days.

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On February 9, 2011, Petitioner filed a letter indicating that his original
filing was "not a civil lawsuit, nor is it habeas corpus." (Feb. 9, 2011 Letter at 1.)
He explains that the "INS and Homeland Security has initiated an action against
[him] for removal proceedings," and that he was "responding to the action they
initiated." (Id.) It seems that Petitioner is challenging removal proceedings.
(Feb. 18, 2011 Order at 1 (footnote added).) The Court further stated:
Here, based on what is alleged in the "Application for Waiver," it appears that the
removal proceedings were ordered as a result of "criminal allegations made against
him which are still currently under review by the courts in California." (App. for
Waiver at 2.) The Court assumes that Petitioner means that the removal
proceedings could have stemmed from his conviction, and that he has commenced a
collateral challenge to his conviction in the state courts. If this is so, 28 U.S.C.
§ 1252(a)(2) bars filing a petition for review in the Court of Appeals. The Court
tentatively determines that if Petitioner filed a habeas petition under § 2241
challenging the removal proceedings, it would be appropriately filed in this Court,
subject to reconsideration after briefing if Respondent wishes to challenge that
point. However, the Court's docket reveals that Petitioner has never filed a federal
habeas petition challenging the removal proceedings in this or any other federal
district court. As such, he has no federal habeas corpus petition pending. Without
an actual petition, this action cannot proceed.

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The Court notes that Chino State Prison is otherwise known as the California Institution for
Men in Chino, California.

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(Id. at 2.) Therefore, Petitioner was directed to file with the Court a § 2241 habeas petition form,

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completed in full within thirty days if he "wishe[d] to challenge the removal proceedings . . . ." (Id.)

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On March 14, 2011, Petitioner filed a habeas petition under 28 U.S.C. § 2241 challenging
removal proceedings. He has paid the $5.00 filing fee.
The Court finds that Petitioner's action must be transferred because jurisdiction does not lie

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in this district. Section 2241 allows "the Supreme Court, any justice thereof, the district courts and

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any circuit judge" to grant writs of habeas corpus "within their respective jurisdictions." 28 U.S.C.

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§ 2241(a). The Court has interpreted the "within their respective jurisdictions" language of § 2241

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to mean nothing more than that the court issuing the writ must have jurisdiction over the custodian.

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United States District Court
For the Northern District of California

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Rumsfeld v. Padilla, 542 U.S. 426, 440-442 (2004). As to challenges under section 2241 to present

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physical confinement, this is not synonymous with any district in which the respondent is amenable

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to service of process. Id. at 442-44. "[F]or core habeas petitions challenging present physical

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confinement, jurisdiction lies in only one district: the district of confinement." Id. at 442-43. Here,

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as mentioned above, Petitioner is incarcerated at the California Institution for Men in Chino,

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California, which lies within the venue of the Eastern Division of the Central District of California.

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See 28 U.S.C. § 84. Therefore, the Court ORDERS that the Clerk of the Court shall TRANSFER

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this matter to the Eastern Division of the United States District Court for the Central District of

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California forthwith. All remaining motions are TERMINATED on this Court's docket as no longer

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pending in this district.

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IT IS SO ORDERED.
DATED:

5/13/11
SAUNDRA BROWN ARMSTRONG
United States District Judge

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G:\PRO-SE\SBA\HC.11\Flores0370.transfer.wpd 2

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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ROMULO H. FLORES,

Case Number: CV11-00370 SBA

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Plaintiff,

CERTIFICATE OF SERVICE

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United States District Court
For the Northern District of California

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v.
INS et al,
Defendant.

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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 May 16, 2011, 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.

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Romulo Hidaldo Flores F61811
Chino State Prison
P.O. Box 600
Chino, CA 91708

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Dated: May 16, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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