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Zachary L. Weir v. Attorney General of the State of Florida

February 13, 2013

ZACHARY L. WEIR,
PETITIONER,
v.
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
RESPONDENT.



The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge

ORDER:

(1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; and (2) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

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

MOTION TO PROCEED IN FORMA PAUPERIS

Petitioner has $0.98 on account at the California correctional institution in which he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner's application to proceed in forma pauperis, and allows Petitioner to prosecute the above-referenced action as a poor person without being required to prepay fees or costs and without being required to post security. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee.

VENUE

A petition for writ of habeas corpus may be filed in the United States District Court of either the judicial district in which the petitioner is presently confined or the judicial district in which he was convicted and sentenced. See 28 U.S.C. § 2241(d); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 497 (1973). Petitioner is presently confined at George Baily Detention Facility, located in San Diego County, which is within the jurisdictional boundaries of the United States District Court for the Southern District of California. See 28 U.S.C. § 84(d). However, it is not clear from the petition whether Petitioner seeks to challenge a state court conviction from Florida, or whether he seeks to challenge the use of the Florida conviction as an enhancement of state court conviction from San Diego County. Nor is it clear whether Petitioner is currently in custody pursuant to a conviction from a San Diego County court. Accordingly, the Court cannot determine from the petition whether jurisdiction exists in the United States District Court for the Southern District of California.

If Petitioner wishes to challenge the validity of his Florida conviction, the Court advises him he must file his habeas corpus action in the United States District Court for the Southern District of Florida. See 28 U.S.C. § 89(c). If Petitioner wishes to challenge a state court conviction from San Diego County, he must file a First Amended Petition that clearly sets forth the conviction he is challenging and the grounds upon which he is challenging it.

FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM

Additionally, in accordance with Rule 4 of the rules governing § 2254 cases, Petitioner has failed to allege that his state court conviction or sentence violates the Constitution of the United States.

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or 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 only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (emphasis added). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant to a "judgment of a State court," and that he is in custody in "violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a).

Here, Petitioner claims that "the trial court failed [to] abide by the proper procedures pursuant to Penal Code [section] 1368," "violations of various civil rights of the Appellant," "petition for release on recognizance (bail review)," and "irrelevance of the charged complaints." (Pet. at 3.) In no way does Petitioner claim he is "in custody in ...


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