Miller v. California, State of et al

Filing 4

ORDER ENTERED: Petitioner is granted 15 days to provide the financial information to support his motion to proceed in forma pauperis and to show cause why this action should not be dismissed, without prejudice, for improper venue and lack of jurisdic tion. Petitioner's motion 3 to order Office of Vital Statistics to produce is denied and any application for a certificate of appealability is denied. Signed by Senior District Judge Sam A. Crow on 6/14/2011. (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.

CASE NO.

11-3094-SAC

STATE OF CALIFORNIA,
Respondent.
O R D E R
This petition for writ of habeas corpus was filed pursuant to
28 U.S.C. § 2254 by an inmate of the California State Prison in
Corcoran, California.

Having considered the materials filed, the

court finds as follows.
Petitioner has filed a Motion to Proceed in forma pauperis.
However, his motion is incomplete.

28 U.S.C. § 1915 requires that

a prisoner seeking to bring a civil action without prepayment of
fees submit an affidavit described in subsection (a)(1), and a
“certified

copy

of

the

trust

fund

account

statement

(or

institutional equivalent) for the prisoner for the 6-month period
immediately preceding the filing” of the action “obtained from the
appropriate official of each prison at which the prisoner is or was
confined.”

28 U.S.C. § 1915(a)(2).

The clerk shall be directed to

provide forms for filing a proper motion under § 1915(a), and
petitioner will be given time to submit a proper motion with
financial information in support. This action may not proceed until
he has submitted a motion that conforms to the requirements of
Section 1915(a).
Petitioner’s allegations are clearly challenges to his state
conviction in the State of California.

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

convicted and sentenced.

judicial

district

in

which

he

was

See 28 U.S.C. § 2241(d); Braden v. 30th

Judicial Circuit Court, 410 U.S. 484, 497 (1973).
Kansas is neither in Mr. Miller’s case.

The District of

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 proper venue for Mr. Miller’s § 2254 claims.
The court takes judicial notice of the court records in Miller
v. State of 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.

The Order also described five petitions

for writ of habeas corpus that had been filed by Mr. Miller seeking
to challenge his California conviction.

Miller’s fourth petition

was denied on the merits and dismissed with prejudice in 2007.

The

Ninth Circuit Court of Appeals denied petitioner’s request for a
certificate of appealability on September 26, 2008.

1

Id. at 4.

The

This court also lacks jurisdiction over civil rights claims against
defendants who are residents of California.

2

District Court then treated the fifth and “Current Federal Petition”
as a “successive” application, for which Mr. Miller had not obtained
authorization from the Ninth Circuit to file.

The court thus found

that

his

it

lacked

application.

jurisdiction

to

consider

fifth

§

2254

The action was dismissed without prejudice, but also

referred to the Ninth Circuit.

The Ninth Circuit then denied

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 patently 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.
This is the third action improperly filed by Mr. Miller in this
district, and the others were denied for the same reasons stated
herein.
Petitioner’s Motion for this court to order the Office of Vital
Statistics to provide his birth certification for production in this
case is denied as without factual or legal basis.

Petitioner’s

application for this document, which he attached to his motion,
should have been sent by him to the appropriate state office.
IT IS THEREFORE ORDERED that petitioner is granted 15 days to
provide the financial information to support his motion to proceed
in forma pauperis and to show cause why this action should not be
dismissed,

without

prejudice,

for

jurisdiction.
3

improper

venue

and

lack

of

IT IS FURTHER ORDERED that petitioner’s Motion to Order Office
of

Vital

Statistics

to

Produce

(Doc.

3)

is

denied,

and

application for a certificate of appealability is denied.
IT IS SO ORDERED.
Dated this 14th day of June, 2011, at Topeka, Kansas.

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

4

any