Gonzalez v. Litteral

Filing 10

ORDER: 1. Pursuant to 28 USC 1406(a), Petitioner Gonzalez's 28 U.S.C. 2254 petition for writ of habeas corpus R. 1 is hereby TRANSFERRED to the United States District Court for the Western District of Kentucky, Owensboro Division, for all further proceedings, including the currently pending motions R. 2 R. 5 ; 2. Gonzalez's Objection to the Recommended Disposition is DENIED R. 7 ; 3. This case is STRICKEN from this Court's active docket; and 4. The Clerk of the Court is DIRECTED to send a copy of this Order to Petitioner Gonzalez. Signed by Judge Gregory F. VanTatenhove on 8/18/17.(KSS)cc: COR, Gonzalez (via US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
OSCAR OMAR GONZALEZ,

)
)
) Civil Action No. 0:17-cv-00002-GFVT-CJS
)
)
)
)
ORDER OF TRANSFER
)
)

Petitioner,
v.
KATHY LITTERAL, Warden.,
Respondent.
****

****

****

****

Petitioner Gonzalez is an inmate confined at the Eastern Kentucky Correctional Complex.
[R. 6 at 1.] Gonzalez files a habeas petition pursuant to 28 U.S.C § 2254 challenging his 2012
conviction in the Daviess County Circuit Court in Owensboro, Kentucky. [R. 1.] Magistrate
Judge Candace Smith filed a Report and Recommendation recommending that this matter be
transferred to the Western District of Kentucky. [R. 6.] As explained below, this Court is in
agreement with Judge Smith that this Court is not a proper venue for this habeas proceeding.
Accordingly, Gonzalez’s § 2254 petition will be transferred and the Magistrate Judge’s Report
and Recommendation ADOPTED as and for the opinion of this Court.
Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after
service to register any objections to the R&R or else waive his rights to appeal. In order to
receive de novo review by this Court, any objection to the recommended disposition must be
specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection “explain[s]
and cite[s] specific portions of the report which [counsel] deem[s] problematic.” Robert v.
Tesson, 507 F.3d. 981, 994 (6th Cir. 2007) (quoting Smith v. Chater, 121 F.3d 709, 1997 WL
415309, at *2 (6th Cir. 1997) (unpublished opinion)). A general objection that fails to identify

2
specific factual or legal issues from the Recommendation, however, is not permitted, since it
duplicates the magistrate's efforts and wastes judicial economy. Howard v. Secretary of Health
and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).
Gonzalez filed a timely objection to the Report and Recommendation. [R. 7.] In his
objection, he states he “objects to all adverse rulings in the Report and Recommendation” and
that he “fears irreparable injury and injustice” in the Western District of Kentucky. [R. 7 at 1.]
Even under the lenient standard applied to pro se defendants, this failure to respond does not
trigger the Court's requirement to conduct a de novo review of that claim. See, e.g., Mira, 806
F.2d at 637 (“The parties have ‘the duty to pinpoint those portions of the magistrate's report that
the district court must specially consider.’ ”) (citing Nettles v. Wainwright, 677 F.2d 404 (5th
Cir. 1982)). Gonzalez cites no case or statute in support of his objection and provides no factual
basis for this Court to assess whether or not he has reason to have fear of transfer of venue.
Accordingly, his objection will be OVERRULED.
A prisoner who seeks a writ of habeas corpus under 28 U.S.C. § 2254 must file the
petition in the jury division in which the challenged judgment, conviction or order was rendered.
See LR. 3.2(b). The federal judicial district for Daviess County, Kentucky, is the United States
District Court for the Western District of Kentucky, Owensboro Division. LR 3.1(b)(3).
Title 28 U.S.C. § 1406(a) permits a district court to transfer a civil action under certain
circumstances.1 Because Defendant is challenging a judgment against him in Daviess Circuit

1

Title 28 U.S.C. § 1406(a) provides as follows:
The district court of a district in which is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of justice, transfer such case to any district
or division in which it could have been brought.

3
Court in Owensboro, Kentucky, Gonzalez’s § 2254 petition will be transferred to the United
States District Court for the Western District of Kentucky, Owensboro Division, for all further
proceedings, including the currently pending motions. [See R. 2; R. 5.]
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED
as follows:
1.

Pursuant to 28 U.S.C. § 1406(a), Petitioner Oscar Gonzalez’s 28 U.S.C. § 2254

petition for writ of habeas corpus [R. 1] is hereby TRANSFERRED to the United States District
Court for the for the Western District of Kentucky, Owensboro Division, for all further
proceedings, including the currently pending motions [R. 2; R. 5.];
2.

Gonzalez’s Objection to the Recommended Disposition is DENIED [R. 7];

3.

This case is STRICKEN from this Court’s active docket; and

4.

The Clerk of the Court is DIRECTED to send a copy of this Order to Petitioner

Gonzalez.
This the 18th day of August, 2017.