McCauley v. Biter

Filing 4

ORDER TRANSFERRING CASE to the United States District Court for the Southern District of California signed by Magistrate Judge Michael J. Seng on 4/25/2013. (Sant Agata, S) [Transferred from California Eastern on 4/25/2013.]

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAMUEL THOMAS McCAULEY,
Petitioner,

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ORDER TRANSFERRING CASE TO THE
UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
CALIFORNIA

v.

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1:13-cv-00582-MJS (HC)

M.D. BITER,
Respondent.

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/

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Petitioner, a state prisoner proceeding pro se, has filed a habeas corpus action

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pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant

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to 28 U.S.C. § 1915.

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The federal venue statute requires that a civil action, other than one based on diversity

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jurisdiction, be brought only in "(1) a judicial district where any defendant resides, if all

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defendants reside in the same state, (2) a judicial district in which a substantial part of the

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events or omissions giving rise to the claim occurred, or a substantial part of the property that

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is the subject of the action is situated, or (3) a judicial district in which any defendant may be

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found, if there is no district in which the action may otherwise be brought." 28 U.S.C. §

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1391(b).

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However, venue for a habeas action is proper in either the district of confinement or the

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district of conviction. 28 U.S.C. § 2241(d). The district court for the district wherein such an

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application is filed in the exercise of its discretion and in furtherance of justice may transfer the

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application to the other district court for hearing and determination. Id.

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It is preferable for petitions challenging a conviction or sentence to be heard in the

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district of conviction while petitions challenging the manner in which the sentence is being

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executed be heard in the district of confinement. Dunne v. Henman, 875 F.2d 244, 249 (9th

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Cir. 1989). In this case, Petitioner is challenging terms of his sentencing and conviction from

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San Diego County, California. As San Diego County is located in the Southern District of

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California, the Southern District of California is the district of conviction. In the interest of

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justice, the petition will be transferred to the United States District Court for the Southern

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District of California. 28 U.S.C. §§ 1404(a) and 2241(d).
Accordingly, IT IS HEREBY ORDERED that this matter is transferred to the United

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States District Court for the Southern District of California.

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IT IS SO ORDERED.

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Dated:
92b0h

April 25, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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