Banks v. Hornack et al

Filing 2

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is DENIED. FURTHER ORDERED that this action is DISMISSED. The clerk of the court shall enter judgment accordingly and close this action. FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Chief Judge Gloria M. Navarro on 5/25/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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FREDERICK BANKS,

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Petitioner,

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vs.

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Case No. 2:16-cv-01151-GMN-NJK

MARK HORNAK, et al.,

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ORDER

Respondents.

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Petitioner is in custody at FCI Butner, in North Carolina.1 He has filed an application to

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proceed in forma pauperis (ECF No.1) and a petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2241. The court will dismiss this action.

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If petitioner is not attacking his sentence, then the correct respondent is the warden of the

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prison where petitioner is held. 28 U.S.C. § 2242. The correct district court in which petitioner

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should file the petition is the district court where the warden is located. 28 U.S.C. § 2241(a). In this

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case, it would be the United States District Court for the Eastern District of North Carolina. If the

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petition could be construed as a motion attacking petitioner’s sentence, then petitioner would need

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to file the motion in the court where he was convicted. 28 U.S.C. § 2255(a). Based upon the name

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of the first respondent, the Honorable Mark Hornak, that court would be the United States District

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Court for the Western District of Pennsylvania.

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The court obtained that information on-line. Petitioner has given his address as the offices
of the Federal Bureau of Prisons in Washington, DC.

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The court will not transfer this action to either of those two courts. First, the petition is so

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vague that the court cannot determine whether it should be a petition under § 2241 or a motion

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under § 2255, and thus the court cannot determine which court would be the correct court. Second,

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even if it was clear which court was the correct court, it still would not be in the interests of justice

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to transfer a vague petition to that court. Petitioner needs to compose a clear, concise petition or

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motion and file it in that court.

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Reasonable jurists would not find the court’s conclusions to be debatable or wrong, and the
court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No.
1) is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED. The clerk of the court shall
enter judgment accordingly and close this action.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: May 25, 2016

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_________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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