Gallardo v. Kane

Filing 4

ORDER transferring action to Central District of CA, Eastern Division. Signed by Judge Roger T. Benitez on 9/13/06. (cag)

Gallardo v. Kane

Doc. 4

Case 3:06-cv-01780-BEN-WMC

Document 4

Filed 09/13/2006

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 vs. A. P. KANE, Warden, Respondent. Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas GUSTAVO GALLARDO, Petitioner, Civil No. 06cv1780-BEN (WMc) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ORDER TRANSFERRING ACTION TO UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

17 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction in the San Bernardino 18 County Superior Court. In accordance with the practice of district courts in California, the Court 19 transfers the Petition to the United States District Court for the Central District of California, 20 Eastern Division. 21 A petition for writ of habeas corpus may be filed in the United States District Court of 22 the judicial district in which the petitioner is presently confined or the judicial district in which 23 he was convicted and sentenced. See 28 U.S.C. § 2241(d); Braden v. 30th Judicial Circuit 24 Court, 410 U.S. 484, 497 (1973). Petitioner here attacks a conviction suffered in the San 25 Bernardino Superior Court. (Pet. at 1.) That court is located in San Bernardino County, which 26 is within the jurisdictional boundaries of the United States District Court for the Central District 27 of California, Eastern Division. See 28 U.S.C. § 84(c)(1). Petitioner is presently confined at the 28 Correctional Training Facility in Soledad, California. That prison is located in Monterey -106cv1780

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Dockets.Justia.com

Case 3:06-cv-01780-BEN-WMC

Document 4

Filed 09/13/2006

Page 2 of 2

1 County, which is within the jurisdictional boundaries of the United States District Court for the 2 Northern District of California. See 28 U.S.C. § 84(a). Jurisdiction over this Petition thus exists 3 in the Central District, Eastern Division, and in the Northern District. See 28 U.S.C. § 2241(d). 4 Although this Court does not have jurisdiction over the action, "[u]nder a provision of the

5 Federal Courts Improvement Act, 28 U.S.C. § 1631, if a court finds that there is a want of 6 jurisdiction the court shall transfer the action to any other such court in which the action could 7 have been brought `if it is in the interest of justice.'" Miller v. Hambrick, 905 F.2d 259, 262 (9th 8 Cir. 1990) (citing In re McCauley, 814 F.2d 1350, 1351-52 (9th Cir. 1987)). The Ninth Circuit 9 has held that transferring a habeas corpus proceeding to a district with proper jurisdiction will 10 be in the interest of justice because normally dismissal of an action that could be brought 11 elsewhere is "time-consuming and justice-defeating." Miller, 905 F.2d at 262 (quoting 12 Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962). Therefore, pursuant to 28 U.S.C. § 1631, 13 this Court may transfer this proceeding to a district with proper jurisdiction under 28 U.S.C. 14 § 2241(d). It is generally the practice of the district courts in California to transfer habeas 15 actions challenging a state conviction to the district in which a petitioner was convicted. Any 16 and all records, witnesses and evidence necessary for the resolution of a petitioner's contentions 17 are more readily available in that district. See Braden, 410 U.S. at 497, 499 n.15; Laue v. 18 Nelson, 279 F. Supp. 265, 266 (N.D. Cal. 1968). In this case, that district is the Central District 19 of California, Eastern Division. Therefore, in the furtherance of justice, 20 IT IS ORDERED that the Clerk of this Court transfer this matter to the United States

21 District Court for the Central District of California, Eastern Division. See 28 U.S.C. § 2241(d). 22 IT IS FURTHER ORDERED that the Clerk of this Court serve a copy of this Order

23 upon Petitioner and upon the California Attorney General. 24 DATED: September 13, 2006 25 26 27 28 Hon. Roger T. Benitez United States District Judge
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