Miller v. Department of Corrections and Rehabilitation

Filing 3

ORDER ENTERED: Petitioner is granted provisional leave to proceed in forma pauperis for the sole purpose of dismissing this action. This action is dismissed without prejudice for improper venue and lack of jurisdiction. Any application for a certificate of appealability is denied. Signed by Senior District Judge Sam A. Crow on 2/25/2011. (Mailed to pro se party Michael Anthony Miller by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MICHAEL ANTHONY MILLER, Petitioner, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondent. O R D E R This petition for writ of habeas corpus was filed by an inmate of the California Substance Abuse Treatment Facility in Corcoran, California. as follows. Petitioner has not satisfied the filing fee for this case. Ordinarily, this action would not proceed until petitioner had either paid the filing fee to the court or submitted a motion to proceed without prepayment of fees supported by the requisite financial information. However, because the court finds that this Having considered the materials filed, the court finds CASE NO. 11-3023-SAC

action must be dismissed, it provisionally grants Mr. Miller leave to proceed without prepayment of fees for the sole purpose of dismissing this action. Petitioner's allegations are clearly challenges to his state conviction, which must be raised by petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. While a federal district court has jurisdiction to hear the habeas corpus claims of a state prisoner under § 2254, this court has no jurisdiction over

petitioner's custodian, and Mr. Miller's allegations evince no

connection whatsoever to this judicial district.1 A petition for writ of habeas corpus may be filed in the United States District Court of either the judicial district in which the petitioner is presently confined or the judicial district in which he was convicted and sentenced. See 28 U.S.C. § 2241(d); Braden v.

30th Judicial Circuit Court, 410 U.S. 484, 497 (1973). The District of Kansas is neither. Petitioner was sentenced and convicted in

California state court and is presently confined at a state facility in California. It follows that the District of Kansas is not the The court takes v. State of

proper venue for Mr. Miller's § 2254 claims. judicial notice of the court records in

Miller

California, Case No. CV 09-4387 R (JC)(CD Cal. July 9, 2009)(Report and Recommendation). That action involved a § 2254 petition filed

by Mr. Miller in 2009, which was transferred to the appropriate federal judicial district, the Central District of California. The

referenced Order set forth the procedural history of petitioner's criminal conviction including his conviction and sentence on July 25, 2001. habeas The Order also described five petitions for writ of filed by Mr. Miller seeking to challenge his

corpus

California conviction.

Miller's fourth petition was denied on the The Ninth Circuit

merits and dismissed with prejudice in 2007.

Court of Appeals denied petitioner's request for a certificate of appealability on September 26, 2008. then treated the fifth and Id. at 4. The District Court Petition" not as a

"Current Mr.

Federal Miller

"successive"

application,

which

had

obtained

authorization to file from the Ninth Circuit.
1

The court thus found

This court also lacks jurisdiction over civil rights claims against California officials by this California inmate.

2

that

it

lacked

jurisdiction

to

consider

his

fifth

§

2254

application.

The action was dismissed without prejudice, but also The Ninth Circuit then denied

referred to the Ninth Circuit.

authorization to file a second or successive § 2254 petition. While this court has the authority to transfer an action filed in the wrong venue to any district in which it could have been brought, it finds that dismissal of this action is appropriate instead. Petitioner's § 2254 petition is obviously successive and

he does not show that he has obtained the requisite authorization from the appropriate Circuit Court of Appeals. Accordingly, the

court finds that justice would not be served by a transfer of this action. IT IS THEREFORE ORDERED that petitioner is granted provisional leave to proceed in forma pauperis for the sole purpose of

dismissing this action. IT IS FURTHER ORDERED that this action is dismissed, without prejudice, for improper venue and lack of jurisdiction. IT IS FURTHER ORDERED that any application for a certificate of appealability is denied. IT IS SO ORDERED. Dated this 25th day of February, 2011, at Topeka, Kansas.

s/Sam A. Crow U. S. Senior District Judge

3