The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The petition reflects that Petitioner is incarcerated at Salinas Valley State Prison in Soledad, California. (Pet. 1.) Petitioner is thus incarcerated within the Northern District of California.
Petitioner challenges findings resulting from two prison disciplinary hearings that occurred while Petitioner was incarcerated at the Kern Valley State Prison, which is located within the Eastern District of California.
The Court takes judicial notice of its findings and recommendations filed on October 29, 2009, in Gaston v. Harrington, case number 1:09-cv-1025-OWW-GSA-HC, regarding Petitioner's previous petition challenging one of the disciplinary findings that is a subject of the instant petition. The Court noted that Petitioner was incarcerated pursuant to a judgment of the Superior Court of California, County of Los Angeles, following his conviction by jury trial on August 12, 1994, of first degree murder with use of a firearm for which he was sentenced to serve an indeterminate prison term of twenty-nine years to life. (Doc. 14, 1: 22-25.)*fn1 Thus, Petitioner was convicted in a court that is situated without the Eastern District of California.
Title 28 U.S.C. § 2241(d) provides as follows which respect to venue, jurisdiction and transfer in a habeas proceeding pursuant to 28 U.S.C. § 2254:
Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination. Although venue is generally proper in either the district of the prisoner's confinement or the convicting court's location, petitions challenging a conviction preferably are heard in the district of conviction, Laue v. Nelson, 279 F.Supp. 265, 266 (N.D.Cal. 1968); petitions challenging execution of sentence are preferably heard in the district where the inmate is confined, Dunne v. Henman, 875 F.2d 244, 249 (9 th Cir. 1989). A court should further consider traditional considerations of venue, such as the convenience of parties and witnesses and the interests of justice. Braden v. 30 th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495 (1973).
Title 28 U.S.C. § 1406(a) provides that a district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
Title 28 U.S.C. § 1631 provides that if a civil action is filed in a court that lacks jurisdiction, the court shall, if it is in the interest of justice, transfer such action to any other court in which the action could have been brought at the time it was filed or noticed, and the action shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
In habeas proceedings challenging prison disciplinary determinations, where the Petitioner is not incarcerated in the district wherein the prison disciplinary determination occurred, venue is proper in either the district where the petitioner is confined or the district where the court was held which convicted and sentenced the petitioner. Although the Ninth Circuit has not determined the issue directly, it has been held that jurisdiction is lacking (and thus venue does not lie) in the district in which the disciplinary proceedings occurred if that district is neither the district of confinement nor the district of the situs of the convicting court. Wadsworth v. Johnson, 235 F.3d 959, 961-963 (5 th Cir. 2000); but see, King v. Pliler, No. C 00-2382 TEH (PR), 2000 WL 1456938 at *1 (N.D.Cal. Sept. 27, 2000) (dicta regarding a prison disciplinary hearing constituting a "conviction"). A prison disciplinary tribunal that imposes a disciplinary penalty that affects the duration of confinement is not a state court that convicted and sentenced the petitioner within the meaning of section 2241(d). 235 F.3d at 962. Further, even though the reach of a district court's service of process may extend throughout a state, § 2241(d) has been interpreted as a specific limit on jurisdiction and venue that supercedes the more general policy to have cases resolved in the court which is located near the site of the underlying controversy. Id. at 963.
Here, the petition concerns not the propriety of Petitioner's conviction or sentence, but rather the execution of his sentence; thus, it is appropriately brought in the district of Petitioner's confinement, namely, the Northern District of California. The case should be transferred pursuant to 28 U.S.C. § 1631 because this Court lacks jurisdiction: Petitioner is not confined in this district, and his state court conviction was not sustained in a court located within the Eastern District.
Accordingly, IT IS ORDERED that the petition be transferred to the United States District Court for the Northern District of California .