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Rios v. Warden

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


May 25, 2009

RENO FUENTES RIOS, PETITIONER,
v.
WARDEN, CSP CORCORAN, RESPONDENT.

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. He has filed an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Under Rule 4 of the Rules Governing Section 2254 cases, the court is required to review habeas petitions before ordering a response to determine if dismissal is appropriate. Dismissal is appropriate if it is plain that petitioner is not entitled to relief. The only claims petitioner makes that arguably state a claim upon which this court could grant habeas relief*fn1 concern his 1989 Sacramento County conviction for kidnaping and the fact that he has been denied parole. As for his claims regarding his conviction for kidnaping, this court already has determined that these claims are time-barred. See CIV-S-04-0017 MCE PAN P. Therefore the claims in this action challenging his conviction are successive; petitioner must obtain permission from the Ninth Circuit Court of Appeals before proceeding on those claims. See 28 U.S.C. § 2244(a) & (b); Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005).

As for the claims concerning denial of parole, the proper venue is the Fresno division of this court since petitioner in currently housed in Kings County at Corcoran State Prison. See Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989) (when a prisoner challenges the execution of his sentence, the preferable venue is the court with jurisdiction over the place where the prisoner is confined). Therefore, the court will recommended that petitioner's claims concerning his 1989 conviction be dismissed and the remainder of this action be transferred to Fresno.

Accordingly, IT IS HEREBY ORDERED that

1. Petitioner's application to proceed in forma pauperis is granted; and

2. This action be assigned to a United State District Court Judge.

IT IS HEREBY RECOMMENDED that:

1. Any claims in petitioner's application for writ of habeas corpus challenging petitioner's 1989 conviction for kidnaping be dismissed; and

2. The remainder of this action be transferred to the Fresno division of this court. 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, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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