Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bartlett v. Penzone

United States District Court, E.D. California

October 17, 2019

ALAN M. BARTLETT, Petitioner,
v.
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)

         Petitioner 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 dismissed.

         I. DISCUSSION

         A. Motion to Proceed In Forma Pauperis

         Petitioner 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 (D.D.C. 2008).

         The 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.

         B. Federal Habeas Corpus Jurisdiction

         Rule 4 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.”

         “District 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).

         It 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).[1] 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 petition.

         Additionally, 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, 489 (1973).

         Here, 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 dismissed.

         A 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.[2]

         II. RECOMMENDATION & ORDER

         Accordingly, the undersigned HEREBY RECOMMENDS that that the petition for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.