United States District Court, S.D. California
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND
JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE
a state prisoner proceeding pro se, has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
TO SATSIFY FILING FEE REQUIREMENT
has failed to pay the $5.00 filing fee and has failed to move
to proceed in forma pauperis. This Court cannot proceed until
Petitioner has either paid the $5.00 filing fee or qualified
to proceed in forma pauperis. See Rule 3(a), 28
U.S.C. Foll. § 2254.
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 San Quentin State Prison,
located in Marin County, which is within the jurisdictional
boundaries of the United States District Court for the
Northern District of California. See 28 U.S.C.
§ 84(a). Although it is not entirely clear, Petitioner
appears to be challenging a conviction from Alameda County
because he claims that Alameda County District Attorney Nancy
O'Malley did not have jurisdiction to prosecute him.
(See Pet., ECF No. 1 at 3.) Alameda County is also
located within the jurisdictional boundaries of the United
States District Court for the Northern District of
California. See 28 U.S.C. § 84(a). Accordingly,
jurisdiction appears to lie in the Northern District and not
the Southern District.
TO STATE A COGNIZABLE FEDERAL CLAIM
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
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 the following:
When Alameda County District Attorney Nancy O'Malley was
compelled to prove subject matter jurisdiction was lawfully
established, she acquiesced to the courts lack of
jurisdiction to render a judgment. She also conceded, and
admitted, to there having been no premeditated crime
committed by anyone, and that all of the evidence was the
fruit of a federal grand jury subpoena that never existed
except one that was fabricated and fraudulently forged to
PURPOSELY CONCEAL THE ILLEGAL SEARCH AND SEIZURE OF THE
PETITIONER'S PHONE RECORDS.
(Pet., ECF No. 1 at 3.)
way does Petitioner claim he is “in custody in
violation of the Constitution or laws or treaties of the