Blacher v. Diaz et al

Filing 3

ORDER Denying #2 Motion to Proceed In Forma Pauperis; Dismissing Action without Prejudice. Signed by Judge Michael M. Anello on 9/14/2020. (All non-registered users served via U.S. Mail Service) (tcf) (jms).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

MARLON BLACHER,

Case No. 20cv1611-MMA (AGS)
Petitioner,

12
13
14

ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS;

v.
RALPH DIAZ, Secretary, et al.,

15

[Doc. No. 2]

Respondents.

DISMISSING ACTION WITHOUT
PREJUDICE

16
17
18
19

Petitioner, a state prisoner incarcerated at the R.J. Donovan Correctional Facility in

20

San Diego, California, proceeding pro se, has filed a petition for a writ of habeas corpus

21

pursuant to 28 U.S.C. § 2254, along with a motion to proceed in forma pauperis. See

22

Doc. Nos. 1, 2. Petitioner is challenging his 2008 murder conviction from the Contra

23

Costa County California Superior Court and the denial of his motion in that court for

24

resentencing pursuant to California Penal Code § 1170.95. See Doc. No. 1 at 1-57.

25
26

MOTION TO PROCEED IN FORMA PAUPERIS
The Court must deny Petitioner’s motion to proceed in forma pauperis because

27

Petitioner has not provided the statutorily required information to determine his financial

28

status. A request to proceed in forma pauperis made by a state prisoner must include a
1
20cv1611-MMA (AGS)

1

certificate from the warden or other appropriate officer showing the amount of money or

2

securities Petitioner has on account in the institution. See Rule 3(a)(2), 28 U.S.C. foll.

3

§ 2254; Local Rule 3.2. Notwithstanding his presumably good faith representations

4

regarding his financial status, Petitioner has failed to provide the Court with the required

5

Prison Certificate. Accordingly, the Court DENIES Petitioner’s motion to proceed in

6

forma pauperis and DISMISSES this action without prejudice.

7
8

PROPER VENUE
The Court cautions Petitioner that a petition for writ of habeas corpus may be filed

9

in the United States District Court of either the judicial district in which the petitioner is

10

presently confined or the judicial district in which he was convicted and sentenced. See

11

28 U.S.C. § 2241(d); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 497 (1973).

12

The application in the present matter attacks a judgment of conviction that was entered in

13

the Contra Costa County Superior Court, which is within the jurisdictional boundaries of

14

the United States District Court for the Northern District of California. See 28 U.S.C. §

15

84(a). Petitioner is presently confined at R.J. Donovan Correctional Facility in San

16

Diego, California, which is within the jurisdictional boundaries of the United States

17

District Court for the Southern District of California. See 28 U.S.C. § 84(d). When a

18

habeas petitioner is challenging a judgment of conviction, the district court of the district

19

in which the judgment of conviction was entered is a more convenient forum because of

20

the accessibility of evidence, records and witnesses. See Braden, 410 U.S. at 497, 499

21

n.15 (stating that a court can transfer habeas cases to the district of conviction which is

22

ordinarily a more convenient forum).

23

If Petitioner wishes to challenge his conviction and the denial of his motion for

24

resentencing, both of which took place in the Northern District of California (see Doc.

25

No. 1 at 1, 122), he should file a new petition without delay in the United States District

26

Court for the Northern District of California.

27

CONCLUSION

28

Based on the foregoing, the Court DENIES Petitioner’s motion to proceed in
2
20cv1611-MMA (AGS)

1

forma pauperis and DISMISSES this action without prejudice to Petitioner’s right to

2

proceed with his claims in the proper venue of the United States District Court for the

3

Northern District of California. The Court DIRECTS the Clerk of Court to close the

4

case.

5
6
7

IT IS SO ORDERED.
DATE: September 14, 2020

____________________________________
HON. MICHAEL M. ANELLO
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
20cv1611-MMA (AGS)