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)

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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)

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