Mitchell (ID 0114031) v. Goddard et al
MEMORANDUM AND ORDER, Petitioner is granted until June 22, 2017 in which to show good cause in writing to the Honorable Sam A. Crow, United States Senior District Judge, why this action should not be dismissed without prejudice. Signed by District Judge Sam A. Crow on 5/26/2017. Mailed to pro se party Daryl Mitchell by regular mail. (ht)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3090-SAC
MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2254. Petitioner proceeds pro se, and the Court grants provisional
leave to proceed in forma pauperis pending petitioner’s submission
of the statutory filing fee or a properly supported motion to proceed
in forma pauperis.
Petitioner’s claims are difficult to interpret. It appears that
he was convicted in a 1999 criminal action in Winnebago, Illinois,
of attempted murder and aggravated battery with a firearm. His claims
assert that the trial court was a “court-in-fiction”, the judge was
a “judge-in-fiction”, and his counsel was an “attorney-in-fiction”;
that he has the right of liberty to be free; that he is being held
without lawful jurisdiction; and that he is a Moorish-American held
under foreign law.
Petitioner attaches over 200 pages of exhibits to the petition,
but these materials have no connection to his criminal conviction or
his claims in this matter.
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court
must review habeas corpus petitions promptly and must summarily
dismiss a petition “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief….”
Rule 4, Rules Governing § 2254 Cases.
The petition has no apparent merit. “In conducting habeas review,
a federal court is limited to deciding whether a conviction violated
the Constitution, laws or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991). Petitioner makes no argument that
suggests a viable constitutional claim concerning the legality his
present confinement. Instead, the materials he submits include
documents related to his religious studies, grievance materials
concerning personal property, and materials identified as filings
under the Uniform Commercial Code and security agreements.
To the extent the petition may be read to challenge petitioner’s
Illinois convictions, the Court concludes that this district is not
the most convenient forum for this action, because the conviction and
sentence petitioner challenges did not occur in the District of
Kansas. Instead, the present petition should be determined in the U.S.
District Court for the Western District of Illinois, the district that
includes the county of his conviction. The United States Code provides
that “[f]or the convenience of the parties and witnesses, in the
interest of justice, a district court may transfer any civil action
to any other district or division where it might have been brought.”
28 U.S.C. § 1404(a). See Wilkins v. Erickson, 484 F.2d 969, 973 (8th
Cir. 1973)(transfer of habeas corpus action from District of South
Dakota to the District of Montana because “the state of conviction
and sentencing, is the most convenient forum because of the
availability of witnesses and records”) and Verissimo v. INS, 204
F.Supp.2d 818, 820 (D.N.J. 2002)(“a habeas petition may be transferred
to the district court of the state in which the petition was sentenced
and convicted, even if the petitioner was transferred to prison in
a different state.”).
However, due to the considerable defects in this action; which
does not provide any reasoned support for the bare claims, suggest
that the claims have been properly exhausted, or show that this matter
is brought within the one-year limitation period applicable to a
petition under 28 U.S.C. §2254; the Court finds that it is not in the
interests of justice to transfer this matter to the district of
petitioner’s conviction. Instead, the Court will direct petitioner
to show cause why this matter should not be dismissed without prejudice
to allow petitioner, if he chooses to do so, to correct the
deficiencies identified by the Court and to file his petition in the
U.S. District Court for the Western District of Illinois.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner is granted to
and including June 22, 2017, to show cause why this matter should not
be dismissed without prejudice.
IT IS SO ORDERED.
This 26th day of May, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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