Strohmeier v. Colorado Attorney General

Filing 7

ORDER DENYING P's 5 Motion for order.; FURTHER ORD DENYING P's 6 Motion for order. FURTHER ORD this actin is DISMISSED. FURTHER ORD Clerk shall ENTER JUDGMENT ACCORDINGLY. Signed by Judge Kent J. Dawson on 2/8/2008. (Copies have been distributed pursuant to the NEF - DRM)

Strohmeier v. Colorado Attorney General

Doc. 7

1 2 3 4 5 6 7 8 9 10 11 12 Respondents. 13 ________________________________/ 14 15 16 17 18 19 20 21 22 23 24 25 26 This action is a petition for a writ of habeas corpus by James P. Strohmeier, a Colorado resident who claims that he was unconstitutionally convicted of contempt of court in a Colorado court, and jailed in Colorado for 180 days in February and March 2006 as a result. The habeas petition was filed on May 16, 2007 (docket #2). Petitioner paid the filing fee (docket #1). Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court is charged with performing a preliminary review of habeas petitions before they are served on the respondents. "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. In this case it is clear that petitioner is not entitled to relief in this Court, as this Court is without jurisdiction over this action. vs. ORDER COLORADO ATTORNEY GENERAL, et al., JAMES P. STROHMEIER, Petitioner, 3:07-cv-0234-KJD-VPC UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Pursuant to 28 U.S.C § 2241(d), courts in the district of conviction and the district of confinement have concurrent jurisdiction over applications for habeas corpus filed by state prisoners. Petitioner was not convicted in this district, and he is not confined here; therefore, this court does not have jurisdiction to entertain his habeas petition. Under 28 U.S.C. § 1631, "if a court finds that there is a want of jurisdiction the court shall transfer the action to any other such court in which the action could have been brought `if it is in the interest of justice.'" Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (citing In re McCauley, 814 F.2d 1350, 1351-52 (9th Cir.1987)). In this case, the interests of justice do not mandate transfer of this action. There was no apparent reason for petitioner to file this action in this forum, as none of the events leading to his conviction occurred in this district, the conviction was not in this district, and his incarceration was not in this district. See In re McCauley, 814 F.2d 1350, 1352 (9th Cir.1987) (Section 1631 "serves to `aid litigants who were confused about the proper forum for review.'" (quoting American Beef Packers, Inc. v. ICC, 711 F.2d 388, 390 (D.C.Cir.1983))). Moreover, petitioner was out of custody long before this action was initiated; it therefore appears unlikely that this action would be cognizable in any Court. See 28 U.S.C. §§ 2241(c)(3), 2254(a); Maleng v. Cook, 490 U.S. 488, 492 (1989); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). This case will, therefore, be dismissed, and petitioner's motions regarding service of process (docket #5 and #6) denied. IT IS THEREFORE ORDERED that "Petitioner's Motion for Order re Service and for Respondents to Provide Documents" (docket #5) is DENIED. IT IS FURTHER ORDERED that "Petitioner's Motion for US District Court Order re Habeas Corpus Petition Service by United States Marshall's Service to Respondents and Costs Paid Thereof" (docket #6) is DENIED. /// /// ///

2

1 2 3 4 5 6 7

IT IS FURTHER ORDERED that this action is DISMISSED. IT IS FURTHER ORDERED that the Clerk of the Court shall ENTER JUDGMENT ACCORDINGLY. DATED: February 8, 2008.

UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

3