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William Cecil Thornton v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 20, 2011

WILLIAM CECIL THORNTON,
PETITIONER,
v.
MATTHEW CATE,
RESPONDENTS.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS; and (2) DISMISSING CASE WITHOUT PREJUDICE

Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a motion to proceed in forma pauperis.

MOTION TO PROCEED IN FORMA PAUPERIS

The request to proceed in forma pauperis is DENIED because Petitioner has not provided the Court with sufficient information to determine Petitioner's financial status. A request to proceed in forma pauperis made by a state prisoner must include a certificate from the warden or other appropriate officer showing the amount of money or securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local Rule 3.2. Petitioner has failed to provide the Court with the required Prison Certificate.

28 U.S.C. § 2241 NOT THE PROPER VEHICLE

Although Petitioner filed this action pursuant to 28 U.S.C. § 2241, he is a state prisoner in state custody. Therefore, he may not proceed under section 2241, but may only proceed with a habeas action in federal court under 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that section 2254 is the proper jurisdictional basis for a habeas petition brought by an individual "in custody pursuant to a state court judgment"). Accordingly, the petition is DISMISSED without prejudice.

IT IS SO ORDERED.

20111020

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