Opinion
No. 2:11-cv-2509 KJN P
09-28-2011
MICHAEL LERMA, Petitioner, v. MATTHEW CATE, et al., Respondents.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. This court will not rule on petitioner's request to proceed in forma pauperis.
Petitioner challenges the 2009 decision of the California Board of Parole Hearings to deny him parole, which was rendered at Pelican Bay State Prison. (Dkt. No. 1 at 1-2 at 68.) Consequently, the instant petition is one for review of the execution of a sentence imposed by a California state court. See Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005) (denial of parole is "a decision 'regarding the execution' of" a prison sentence.) As a general rule, "[t]he proper forum to challenge the execution of a sentence is the district where the prisoner is confined." Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989). Petitioner is incarcerated at Pelican Bay State Prison, Crescent city, California, County of Del Norte, which lies in the Northern District of California. See 28 U.S.C. § 84(a).
Pursuant to 28 U.S.C § 2241(d), courts in both the district of conviction and the district of confinement have concurrent jurisdiction over applications for habeas corpus filed by state prisoners. While petitioner was convicted in this district, for the reasons set forth supra, the proper forum for the instant challenge is in the district of confinement. In the interest of justice, this court may transfer this action "to any other district where it might have been brought." 28 U.S.C. § 1404(a). Therefore, in the interest of justice, this action will be transferred to the United States District Court for the Northern District of California.
In accordance with the above, IT IS HEREBY ORDERED that:
1. This court has not ruled on petitioner's September 22, 2011 request to proceed in forma pauperis, or motions for appointment of counsel and for evidentiary hearing; and
2. This matter is transferred to the United States District Court for the Northern District of California. 28 U.S.C. § 2241(d); 28 U.S.C. § 1406(a).
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE