Toelle v. Warden of Victorville Camp FCI Med, I

Filing 3

ORDER. IT IS THEREFORE ORDER that Petitioner will have 60 days from the date of this order to (1) pay the $5 filing fee for this action or file an application to proceed in forma pauperis using the correct form, and (2) submit for filing an amended petition for writ of habeas corpus on the correct form. IT IS FURTHER ORDER that the Clerk of the Court is directed to send to Petitioner: - the form for a Petition for Writ of Habeas Corpus Under 28 U.S.C. 2241; - the form for an Application to Proceed In Forma Pauperis by an inmate; and - the form for an Application to Proceed In Forma Pauperis by a non-inmate. Amended Petition due by 7/9/2024. Payment of filing fees due 7/9/2024. Signed by Judge Andrew P. Gordon on 5/9/2024. (Copies have been distributed pursuant to the NEF cc Sent Plaintiff Habeas Petition form, IFP application inmate/non-inmate - CAH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

4 LOREN MICHELLE TOELLE,
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Case No.: 2:24-cv-00815-APG-BNW

Petitioner,

Order

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7 WARDEN OF VICTORVILLE CAMP FCI,
MED, I,
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Respondent.
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This habeas corpus action, under 28 U.S.C. § 2241, was initiated, pro se, by Loren

11 Michelle Toelle, on April 29, 2024. On that date, Toelle submitted for filing his habeas petition
12 (ECF No. 1-1) and supporting exhibits (ECF Nos. 1-1, 1-2).
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Toelle’s petition has not been filed because Toelle did not pay the $5 filing fee for a

14 habeas action or apply to proceed in forma pauperis. I will grant Toelle time to do one or the
15 other if he wishes to proceed with this action. I will direct the Clerk of the Court to send Toelle
16 the form he would need to apply to proceed in forma pauperis.
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While I have not formally screened Toelle’s petition under Rule 4 of the Rules Governing

18 Section 2254 Cases, I note that the petition has obvious flaws. I will grant Toelle an opportunity
19 to submit an amended habeas petition correcting the flaws I identify, along with his payment of
20 the filing fee or application to proceed in forma pauperis, if he wishes to proceed with this
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First, Toelle’s petition is not on the form required by this Court. Perhaps in part for this

23 reason, it lacks information that I would need to properly screen, and, if warranted, adjudicate his

1 petition. I will direct the Clerk of the Court to send Toelle the form he would need to draft an
2 amended petition. If Toelle wishes to proceed with this action, he must submit, with the filing fee
3 or application to proceed in forma pauperis, an amended petition for writ of habeas corpus
4 drafted using the form provided by this Court.
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Second, Toelle’s petition does not clearly allege that he is in custody, or that he was in

6 custody when his petition was submitted for filing. I observe that Toelle’s mailing address is at a
7 residence in North Las Vegas, Nevada. A writ of habeas corpus may issue only upon a finding
8 that a prisoner is “in custody in violation of the Constitution or laws or treaties of the United
9 States.” 28 U.S.C. § 2241(c)(3). The United States Supreme Court has interpreted this statutory
10 language as requiring that a federal habeas petitioner must be “in custody” under the conviction
11 or sentence under attack at the time the petition is filed. Maleng v. Cook, 490 U.S. 488, 490–91
12 (1989). If Toelle elects to file an amended petition and proceed with this action, his amended
13 petition must clarify whether, and if so, where or how, Toelle is in custody, or that he was in
14 custody on April 29, 2024, when he submitted his original petition for filing.
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Third, this Court does not have jurisdiction over the respondent named in Toelle’s

16 petition. It appears from Toelle’s petition that he was convicted of one or more crimes in a
17 federal court, and he claims that the Federal Bureau of Prisons (BOP) has not properly applied
18 the Second Chance Act (SCA) to his sentence. See ECF No. 1-1 at 1–2. As such, Toelle does not
19 claim that the sentencing court imposed an illegal sentence—a claim that would have to be made
20 in the sentencing court in a motion under 28 U.S.C. § 2255. Rather Toelle seeks relief with
21 respect to application of the SCA in the execution of his sentence. This is, in effect, a challenge
22 to the manner, location, or conditions of the execution of Toelle’s sentence. See Nettles v.
23 Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“Challenges to the validity of any

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1 confinement or to the particulars affecting its duration are the province of habeas corpus….”)
2 (quoting Muhammad v. Close, 540 U.S. 749, 750 (2004)); Tucker v. Carlson, 925 F.2d 330, 331
3 (9th Cir. 1991) (challenge to the “manner in which … sentence was executed ... maintainable
4 only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”). Such a claim,
5 challenging the manner in which a federal criminal sentence is executed, must be brought in the
6 federal district court with jurisdiction over the respondent(s) holding the petitioner in custody,
7 that is, in the “custodial court.” It is unclear from Toelle’s petition whether he is, or has ever
8 been, in custody in Nevada. And, in his petition, Toelle names as respondent the “Warden of
9 Victorville Camp FCI, Med, I.” See ECF No. 1-1 at 1. The Federal Correctional Institution,
10 Victorville, is a federal prison in Victorville, California, which is outside the jurisdiction of this
11 court. If Toelle elects to file an amended petition and proceed with this action in this Court, he
12 must be certain that this is the custodial court, and that this Court has jurisdiction over the
13 respondent(s) he names.
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If Toelle does not, within the time allowed by this order, (1) pay the $5 filing fee for this

15 action or apply to proceed in forma pauperis using the correct form, and (2) submit for filing an
16 amended petition for writ of habeas corpus on the correct form, I will dismiss this action, without
17 prejudice to him filing a habeas petition in the proper court. If Toelle determines that he has filed
18 this action in this Court in error, he may simply do nothing, and this case will be dismissed
19 without prejudice to him filing a habeas petition in the proper court.
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I THEREFORE ORDER that Petitioner will have 60 days from the date of this order to

21 (1) pay the $5 filing fee for this action or file an application to proceed in forma pauperis using
22 the correct form, and (2) submit for filing an amended petition for writ of habeas corpus on the
23 correct form.

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I FURTHER ORDER that the Clerk of the Court is directed to send to Petitioner:

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the form for a Petition for Writ of Habeas Corpus Under 28 U.S.C.
§ 2241;

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the form for an Application to Proceed In Forma Pauperis by an
inmate; and

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the form for an Application to Proceed In Forma Pauperis by a
non-inmate.

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Dated: May 9, 2024

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________________________________
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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