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Magee v. Clark

July 21, 2010

RUCHELL CINQUE MAGEE, PETITIONER,
v.
K. CLARK, RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION AS DUPLICATIVE AND AS APPROPRIATELY HEARD IN THE DISTRICT OF CONVICTION (Doc. 1) AND TO DENY PETITIONER'S MOTION FOR ASSIGNMENT AS MOOT (Doc. 3)

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is 1) the petition, and 2) a motion for assignment of Judge Oliver W. Wanger to this petition because the petition is related to a previously filed petition pending before Judge Wanger.

I. Background

On September 21, 2009, Petitioner filed a petition for writ of habeas corpus in this Court. This petition has been assigned case number "1:09-CV-01663 OWW GSA HC." In that action, findings and recommendations to grant the respondent's motion to dismiss the petition were filed on July 15, 2010 (doc. 40) and are currently pending before the Court. The petition challenges the decision of the California Board of Parole Hearings in 2008 not to set a determinate term for Petitioner and to deny parole. (Doc. 40, 2:1-3.)

On May 12, 2010, Petitioner filed a second petition for writ of habeas corpus that is pending in the instant action in this Court. This petition has been assigned case number "1:10-CV-00830 AWI SKO HC." The petition challenges Petitioner's conviction in 1975 of kidnaping in violation of Cal. Pen. Code § 209. The petition details errors or violations of rights allegedly suffered in the course of prosecution and conviction of kidnaping, including all parties' ignoring an alleged acquittal of the charge of kidnaping, being forced into a guilty plea by the misconduct of counsel, being denied the effective assistance of counsel at trial, and suffering a violation of the protection against double jeopardy. (Pet. 5, 10.)

However, in several locations in the petition, Petitioner refers to the later use of his conviction, or the failure to recognize his acquittal, as a basis for a denial of parole. (Pet. 3, 5, 6.) He also seeks some relief related to the Parole Board, namely, an order to the Parole Board with respect to use of information concerning the acquittal. (Id. 11.)

II. Dismissal of Petitioner's Challenge to His Conviction

Petitioner is housed at the Corcoran State Prison, which is within the Eastern District of California. He suffered his kidnaping conviction in the Santa Clara County Superior Court, which is within the Northern District of California.

Statutory provisions permit the filing of a petition challenging a conviction in the district of confinement or the district of conviction. 28 U.S.C. § 2241(d). However, in the exercise of its discretion and in furtherance of justice, a district court where a petition is filed may transfer the petition to another district for hearing and determination. Id. This statute has been interpreted to have been intended to facilitate the hearing of claims concerning convictions in the district where the conviction was sustained:

The legislative history of the section makes clear that a district court should transfer a petition to the district in which petitioner was convicted and sentenced if the transferring court is of the view that an evidentiary hearing will be necessary before final determination can be had. 2 United States Code Congressional and Administrative News, p. 2968 (1966). The purpose of this procedure is to 'permit the hearing to be held by the district court for the place of conviction, the one best able to administer full justice.' Id. at p. 2974.

Laue v. Nelson, 279 F.Supp. 265, 266 (C.D.Cal. 1968).

Insofar as Petitioner challenges his kidnaping conviction (or the failure of the courts and all other parties and institutions to recognize an acquittal of kidnaping), Petitioner's claims are more appropriately heard in the district in which the conviction was sustained. Because Petitioner's conviction was sustained in the Santa Clara County Superior Court, claims concerning his conviction are appropriately considered in the Northern District of California.

Here, it does not appear that the conduct of the parole authorities is the gist of Petitioner's claim; rather, Petitioner appears to mention the actions of the California Supreme Court and the parole authorities only in a secondary fashion. The petition relates primarily to the validity of Petitioner's conviction in Santa Clara. Further, Petitioner submits evidence that is beyond the scope of the record of the convictions (see, e.g., pet. 19-21), and it is thus possible that resolution of the petition will involve an evidentiary hearing. Finally, Petitioner himself recognizes that the instant petition relates to his conviction, whereas the petition in the other case relates to parole. (No. 1:10-00830-AWI-SKO, pet. 10 [describing the habeas petition in 1:09-cv-01663-OWW-GSA as a "Parole issue"]; mot. (doc. 3) 1:22-24 [describing one petition as challenging parole, the other as showing jury acquittal].)

Accordingly, to the extent that Petitioner seeks to challenge his conviction in Santa Clara, the petition will be dismissed without prejudice to Petitioner's filing a petition addressing the conviction in the Northern District of ...


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