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United States v. Baldon

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 20, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
LECHARLES BALDON, MOVANT.

FINDINGS AND RECOMMENDATIONS

Movant is a federal prisoner proceeding pro se. He has filed a motion which he has titled "motion to set aside, vacate or correct sentence pursuant to 28 U.S.C. § 2225." However, the relief movant seeks is additional sentence credit from the Federal Bureau of Prisons for time he served in custody between June 6, 2005 and October 29, 2006. The Ninth Circuit has held that such actions may only be brought under 28 U.S.C. § 2241. Tucker v. Carlson, 925 F.2d 330, 331-32 (9th Cir. 1991). Therefore, the court construes movant's "§2255 motion" as an application for writ of habeas corpus under 28 U.S.C. § 2241.*fn1

In a § 2241 application for writ of habeas corpus, the proper respondent is the warden where the prisoner is housed. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). Movant is currently housed at the United States Penitentiary in Lompoc, California. Therefore, the proper respondent is the warden of that facility and not the United States of America.

This court does not have jurisdiction over the warden at Lompoc as Lompoc lies within the geographical area covered by the United States District Court for the Central District of California. Also, there does not appear to be any other basis for jurisdiction over movant's claims. Good cause appearing, the court will recommend that this action be dismissed without prejudice to re-filing in the Central District. Movant is informed that if he elects to re-file this action in the Central District, he should name the warden at Lompoc as the respondent.

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Respondent's motion to dismiss (#66) be granted;

2. This action be dismissed without prejudice to movant filing an application for writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Central District of California; and

3. The clerk of the court be directed to close the companion civil case No. CIV-S-07-2321 FCD KJM P.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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