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Allen Rod Tongco andrade v. United States of America

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


December 13, 2011

ALLEN ROD TONGCO ANDRADE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding without counsel. He is confined in the Pinal County Jail, which is located in the District of Arizona. See Dckt. No. 4. Petitioner is currently involved in removal proceedings and is being detained by Immigrations and Customs Enforcement pursuant to the Immigration and Naturalization Act. Dckt. No. 1 at 17, 18. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

On September 15, 2011, petitioner filed in the United States District Court for the Central District of California a "Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody," pursuant to 28 U.S.C. § 2255. Therein, petitioner appears to be challenging two separate state court convictions entered against him in the Solano County Superior Court. Dckt. No. 1 at 2. Under these circumstances, petitioner's claims are more appropriately characterized as a habeas corpus petition pursuant to 28 U.S.C. § 2254. Compare 28 U.S.C. § 2255(a) (allowing a federal challenge to "a prisoner in custody under sentence of a court established by Act of Congress") with 28 U.S.C. § 2254 (". . . a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court . . ."). By order dated September 29, 2011, the petition was transferred to this court by the District Court for the Central District of California. Dckt. No. 4.

A petitioner seeking a writ of habeas corpus either must pay the $5.00 filing fee, see 28 U.S.C. § 1914(a), or request leave of court to proceed in forma pauperis, 28 U.S.C. § 1915(a).

Petitioner has neither paid the fee nor submitted an application for leave to proceed in forma pauperis.

Within 30 days from the day this order is served, petitioner may submit either the filing fee or the application required by section 1915(a). Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed. The Clerk of the Court is directed to mail to petitioner a form application for leave to proceed in forma pauperis.

So ordered.

20111213

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