Centeno v. Unknown

Filing 2

ORDER DISMISSING CASE without prejudice. Signed by Judge Barry Ted Moskowitz on 6/18/07. (vet, )

Centeno v. Unknown

Doc. 2

Case 3:07-cv-00993-BTM-BLM

Document 2

Filed 06/18/2007

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On May 16, 2007, a criminal complaint was filed against Centeno for a violation of 8 U.S.C. § 1326 and he was appointed counsel. (See United States v. Centeno, 07mj1055 JMA [doc. No. 2].) The claims raised in the Petition appear to relate to that criminal action. -1Dockets.Justia.com
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

GLORISMEL JESUS CENTENO, Petitioner, v. UNKNOWN, Respondent.

Civil No.

07-0993 BTM (BLM)

ORDER DISMISSING CASE WITHOUT PREJUDICE

Petitioner, a federal detainee proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. FAILURE TO SATISFY THE FILING FEE REQUIREMENT Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. CLAIMS NOT COGNIZABLE UNDER 28 U.S.C. § 2254 Although Petitioner has filed this action pursuant to 28 U.S.C. § 2254, he is a federal detainee attacking the validity of his federal detention.1 Therefore, Petitioner may not proceed under section 2254, but may only proceed with a habeas action in federal court under 28 U.S.C.

Case 3:07-cv-00993-BTM-BLM

Document 2

Filed 06/18/2007

Page 2 of 2

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§ 2241. White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that section 2254 is the proper jurisdictional basis for a habeas petition brought by an individual "in custody pursuant to a state court judgment"). Furthermore, Petitioner has adequate remedies in the pending criminal proceeding which he must exhaust before proceeding by Petition for Writ of Habeas Corpus. Thus, the Petition is DISMISSED without prejudice for failure to satisfy the filing fee requirement and because Petitioner's claims are to be raised in the pending criminal case. IT IS SO ORDERED. DATED: June 18, 2007

Hon. Barry Ted Moskowitz United States District Judge

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