United States District Court, E.D. California
ALAN M. BARTLETT, Petitioner,
PAUL PENZONE, Respondent.
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS ORDER GRANTING PETITIONER'S MOTION
TO PROCEED IN FORMA PAUPERIS AND DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE (ECF No. 2)
Alan M. Bartlett is proceeding pro se with a
petition for writ of habeas corpus. Given that Petitioner
does not reside within this judicial district, does not
appear to be incarcerated based upon any judgment issued
within this judicial district, and does not challenge his
underlying conviction or the fact or duration of his
confinement, the undersigned recommends that the petition be
Motion to Proceed In Forma Pauperis
has filed a motion to proceed in forma pauperis.
(ECF No. 2). In order to proceed in court without prepayment
of the filing fee, Petitioner must submit an affidavit
demonstrating that he “is unable to pay such fees or
give security therefor.” 28 U.S.C. § 1915(a)(1).
Although there is no set formula to determine whether a
certain income level meets the poverty threshold under §
1915(a)(1), courts have looked to the federal poverty
guidelines developed each year by the Department of Health
and Human Services. See Lint v. City of Boise, No.
CV09-72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28,
2009); Johnson v. Leohane, No. Civ.
08-00432-ACK-KSC, 2008 WL 4527065, at *1 (D. Haw. Oct. 9,
2008); Johnson v. Spellings, 579 F.Supp.2d 188, 191
Court has evaluated whether Petitioner meets the standard to
proceed in forma pauperis according to 28 U.S.C.
§ 1915. Based upon the information in his motion to
proceed in forma pauperis, the Court finds that
Petitioner is indigent and unable to pay the filing fee.
Accordingly, Petitioner's motion to proceed in forma
pauperis is granted.
Federal Habeas Corpus Jurisdiction
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.”
courts are limited to granting habeas relief ‘within
their respective jurisdictions.' 28 U.S.C. §
2241(a). We have interpreted this language to require
‘nothing more than that the court issuing the writ have
jurisdiction over the custodian.'” Rumsfeld v.
Padilla, 542 U.S. 426, 442 (2004) (quoting Braden v.
30th Judicial Circuit Court of Ky., 410 U.S. 484, 495
(1973)). Additionally, when a state prisoner files a habeas
petition in a state that contains two or more federal
judicial districts, the petition may be filed in either the
judicial district in which the petitioner is presently
confined or the judicial district in which he was convicted
and sentenced. 28 U.S.C. § 2241(d).
appears from the petition that Petitioner was convicted in
2015 in the United States District Court for the District of
Alaska and is currently in custody at the Lower Buckeye Jail
in Phoenix, Arizona. (ECF No. 1 at 1, 6). Based on the
information contained in the petition, Petitioner is not
presently confined in the Eastern District of California and
was not convicted and sentenced in this district.
Accordingly, this Court lacks jurisdiction over the instant
the federal habeas statute provides that a district court may
entertain a habeas application by a person “in custody
in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. §§ 2241(c)(3),
2254(a). A claim is cognizable in federal habeas corpus when
a petitioner challenges “the fact or duration of his
confinement” and “seeks either immediate release
from that confinement or the shortening of its
duration.” Preiser v. Rodriguez, 411 U.S. 475,
Petitioner asserts that the State Bar of California violated
his constitutional rights with respect to his misconduct
claims against various attorneys. (ECF No. 1 at 1, 6-14). On
the face of the petition, Petitioner does not challenge any
aspect of his underlying conviction or the fact or duration
of his confinement. As the petition also fails to state a
cognizable claim for federal habeas relief, it should be
petition for habeas corpus should not be dismissed without
leave to amend unless it appears that no tenable claim for
relief can be pleaded were such leave granted. Jarvis v.
Nelson, 440 F.2d 13, 14 (9th Cir. 1971). However, as
Petitioner is not presently confined in the Eastern District
of California and was not convicted and sentenced in this
district, the Court finds that these jurisdictional issues
cannot be cured by amendment.
RECOMMENDATION & ORDER
the undersigned HEREBY RECOMMENDS that that the petition for