Breedlove v. Grounds

Filing 8

ORDER by Judge Ronald M. Whyte Denying 5 Motion for Leave to Proceed in Forma Pauperis; Denying 7 Motion to Transfer Venue; Further Scheduling. (jg, COURT STAFF) (Filed on 10/25/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CALVIN RAY BREEDLOVE,

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Petitioner,
v.
WARDEN RANDY GROUNDS,
Respondent.

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No. C 11-2379 RMW (PR)
ORDER DENYING MOTION
TO TRANSFER VENUE;
FURTHER SCHEDULING
(Docket Nos. 5, 7)

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On June 24, 2011, the court issued an order to respondent to show cause why this petition
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for writ of habeas corpus should not be granted. Petitioner’s motion for leave to proceed in
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forma pauperis is DENIED as moot. Respondent has filed a motion to transfer venue to the
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Central District of California. For the reasons set forth below, respondent’s motion is DENIED.
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Pursuant to a negotiated plea agreement, petitioner pleaded guilty to, and was convicted
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of, second degree murder. The trial court sentenced him to a term of 15 years to life. In August
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2009, the Board of Parole Hearings (“Board”) found petitioner unsuitable for parole for the
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seventh time. In his federal petition, petitioner claims that the State breached the plea
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agreement by denying him parole, and by opposing parole.
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Respondent moves to transfer this action to the Central District of California because it is
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the district of conviction. However, venue is proper in either the district of conviction or the
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district of confinement. 28 U.S.C. § 2241(d). Whereas the district of conviction is the preferable
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Order Denying Motion to Transfer Venue
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forum to review a conviction, see Dannenberg v. Ingle, 831 F. Supp. 767, 767 (N.D. Cal. 1993),

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the district of confinement is the preferable forum to review the execution of a sentence, see

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Habeas L. R. 2254-3(a); Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989).

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Contrary to respondent’s assertion, petitioner does not challenge his fact of his conviction

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or sentence. He does not claim that his plea agreement is invalid. Rather, he claims that the

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Board’s and prosecutor’s actions amounted to a breach of his plea agreement. His challenge is

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one related to the execution of his sentence. Thus, the Northern District, the district of

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confinement, is the proper venue.

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CONCLUSION

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1.

Respondent’s motion to transfer venue is DENIED.

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2.

Respondent shall file with the court and serve on petitioner, within sixty days of

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the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the

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underlying state criminal record that have been transcribed previously and that are relevant to a

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determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within thirty days of the date the answer is filed.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases within sixty days of the date this order is filed. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or statement of non-

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opposition within thirty days of the date the motion is filed, and respondent shall file with the

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court and serve on petitioner a reply within fifteen days of the date any opposition is filed.

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4.

It is petitioner’s responsibility to prosecute this case. Petitioner is reminded that

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all communications with the court must be served on respondent by mailing a true copy of the

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document to respondent’s counsel. Petitioner must keep the court and all parties informed of any

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change of address by filing a separate paper captioned “Notice of Change of Address.” He must
Order Denying Motion to Transfer Venue
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comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal

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of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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This order terminates docket numbers 5 and 7.

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IT IS SO ORDERED.

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DATED:
RONALD M. WHYTE
United States District Judge

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Order Denying Motion to Transfer Venue
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

CALVIN RAY BREEDLOVE,

Case Number: CV11-02379 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
RANDY GROUNDS 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 October 25, 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.

Calvin Ray Breedlove D-23756
Correctional Training Facility
FW-214
P.O. Box 689
Soledad, CA 93960-0689

Dated: October 25, 2011
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk