Robinson v. Unknown

• Court: District Court, S.D. California
• Decided: July 25, 2022
• Docket: 3:22-cv-01051
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 MARCELL T.H. ROBINSON III, Case No. 22-cv-1051-BAS-MSB 11

Petitioner, 12 ORDER DISMISSING CASE v. WITHOUT PREJUDICE (ECF No. 1) 13 UNKNOWN, 14 Respondent. 15 16 Petitioner, a federal prisoner proceeding pro se, has filed a Petition for Writ of 17 Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1), but has failed to pay the $5.00 18 filing fee and has failed to move to proceed in forma pauperis (“IFP”). 19 I. FAILURE TO SATISFY FILING FEE REQUIREMENT 20 Because this Court cannot proceed until Petitioner has either paid the filing fee or 21 qualified to proceed IFP, the Petition is subject to dismissal without prejudice. See Rules 22 1(b), 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this action, he must 23 submit a copy of this order with the requisite $5.00 fee or adequate proof he cannot pay the 24 fee. 25 II. VENUE 26 A habeas petition filed pursuant to 28 U.S.C. § 2241 must be brought in the district 27 in which the petitioner is presently confined while a challenge under § 2255 must be 28 brought in the district in which the petitioner was convicted. Hernandez v. Campbell, 204 1 F.3d 861, 865 (9th Cir. 2000). Petitioner is currently incarcerated at the Federal 2 Correctional Institution Terminal Island, located in Los Angeles County, California. (See 3 ECF No. 1 at 1.) As such, § 2241 jurisdiction exists in Petitioner’s district of confinement, 4 the Central District of California, Western Division, and not in the Southern District. See 5 28 U.S.C. 84(c)(2); see also e.g. Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989) 6 (“Where . . . a prisoner challenges the manner in which the federal authorities are executing 7 his federal sentences, it is not necessarily advantageous to have the federal district court 8 which sentenced him resolve his section 2241 habeas corpus petition . . . The proper forum 9 to challenge the execution of a sentence is the district where the prisoner is confined.”). 10 Meanwhile, “[a] prisoner in custody under sentence of a court established by Act of 11 Congress claiming the right to be released upon the ground that the sentence was imposed 12 in violation of the Constitution or laws of the United States, or that the court was without 13 jurisdiction to impose such sentence, or that the sentence was in excess of the maximum 14 authorized by law, or is otherwise subject to collateral attack, may move the court which 15 imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a) 16 (emphasis added). While Petitioner has a criminal judgment issued by the Southern 17 District of California, he indicates that he is not intending to proceed with a challenge under 18 § 2255. (See ECF No. 44 in So. Dist. Cal. Case No. 18cv5114-GPC-1; see also ECF No. 19 1 at 4.) However, in an abundance of caution and because the instant habeas action is 20 subject to dismissal for failure to satisfy the filing fee requirement, the Court will provide 21 Petitioner an opportunity to clarify whether he intends to proceed with a challenge under 22 § 2241 or § 2255. 23 III. CONCLUSION AND ORDER 24 The Petition is DISMISSED without prejudice for failure to satisfy the filing fee 25 requirement. To have this case reopened, Petitioner must submit a copy of this Order with 26 the $5.00 fee or with adequate proof of his inability to pay the fee, no later than 27 September 21, 2022. For Petitioner’s convenience, the Clerk of Court shall send a blank 28 1 Southern District of California Jn Forma Pauperis Application to Petitioner along with a 2 || copy of this Order. 3 With respect to venue, to the extent Petitioner is attempting to proceed with a habeas 4 || action pursuant to § 2241, he may do so by filing a Petition under 28 U.S.C. § 2241 in his 5 ||present district of confinement as discussed above, currently the Central District of 6 || California, Western Division. If Petitioner instead intends to challenge his conviction in 7 Southern District of California, the challenge may not be brought by way of § 2241 but 8 || may only be brought by way of § 2255. 9 IT ISSO ORDERED 10 || DATED: July 25, 2022 A i Lin A (Haphoa. 6 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28