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David Upton v. Aref Fakhoury

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


November 16, 2011

DAVID UPTON, PETITIONER,
v.
AREF FAKHOURY, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding without counsel or "pro se", has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

Petitioner challenges the 2011 decision of the California Board of Parole Hearings to deny him parole. Consequently, the instant petition is one for review of the execution of a sentence imposed by a California state court. See Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005) (denial of parole is "a decision 'regarding the execution' of" a prison sentence.) As a general rule, "[t]he proper forum to challenge the execution of a sentence is the district where the prisoner is confined." Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989). Petitioner is incarcerated in the California Institution for Men, Chino, California, County of San Bernardino, which lies in the Central District of California. See 28 U.S.C. § 84(a).

Pursuant to 28 U.S.C § 2241(d), courts in both the district of conviction and the district of confinement have concurrent jurisdiction over applications for habeas corpus filed by state prisoners. Because petitioner was not convicted in this district, and is not presently confined here, this court does not have jurisdiction to entertain the application.

Accordingly, IT IS HEREBY ORDERED that this matter is transferred to the United States District Court for the Central District of California. 28 U.S.C. § 2241(d); 28 U.S.C. § 1406(a).

20111116

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