Tichenor v. Milusnic
- Proceeding
- district
- Area
- civil
- Panel
- Ernest Allen Tolin (author)
Analysis
A pro se federal prisoner filed a § 2241 habeas petition in the Southern District of California challenging his federal conviction and sentence based on Rehaif v. United States, but failed to pay the filing fee or file for in forma pauperis status. The court dismissed the case without prejudice, finding that the Southern District of California lacked proper venue and that the petitioner had not satisfied the initial filing requirements.
| What the court decided | The model |
|---|---|
Dismissal of the case without prejudice“For the foregoing reasons, the Court DISMISSES this case without prejudice.” | agree with court The dismissal is procedurally correct. The court correctly identified that the petitioner failed to pay the $5.00 filing fee or file a motion to proceed in forma pauperis, which is a prerequisite for the case to proceed. Additionally, the court correctly applied the venue rules for federal habeas corpus petitions, noting that challenges to the legality of a sentence must be filed in the sentencing court (District of Montana) under § 2255, while challenges to the execution of the sentence must be filed in the custodial court (Central District of California) under § 2241. The Southern District of California is neither the sentencing court nor the custodial court, thus it lacks proper venue. Dismissing without prejudice allows the petitioner to refile in the correct court. |
The order itself: sound — The order is sound. It correctly identifies the procedural deficiency (failure to pay fee/file IFP) and the substantive jurisdictional/venue error. It cites the correct Ninth Circuit precedent (Hernandez) to distinguish between § 2255 and § 2241 petitions and correctly applies the statutory venue rules for both. The dismissal without prejudice is the appropriate remedy to allow the petitioner to refile in the correct court.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CURTIS KEITH TICHENOR, Case No.: 19cv1596 MMA (JLB)
12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE 14 L.J. MILUSNIC, Warden, 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. He has not paid the $5.00 filing fee and has 19 not filed a motion to proceed in forma pauperis. The case cannot proceed until Petitioner 20 has either paid the $5.00 filing fee or qualified to proceed in forma pauperis. 21 Further, the United States District Court for the Southern District of California 22 does not appear to be the proper venue for Petitioner’s claims. In his Petition, Petitioner 23 contends that his conviction for being a felon in possession of a firearm, a violation of 18 24 U.S.C. § 922(g) is “unconstitutional and/or void according to Rehaif v. United States, No. 25 17-9560 [because] [t]he indictment failed to state all elements required under statute.” 26 (Pet., ECF No. 1 at 3.) He also contends that “[t]he sentencing court failed to include the 27 ‘knowledge’ of prohibit[ed] status as an element of Count III.” (Id.) Generally, motions 28 to contest the legality of a sentence must be filed under [28 U.S.C.] § 2255 in the 1 || sentencing court, while petitions that challenge the manner, location, or conditions of a 2 sentence execution must be brought pursuant to [28 U.S.C.] § 2241 in the custodial 3 || court.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Petitioner is 4 ||currently housed at the United States Prison in Victorville, California, which is within the 5 ||jurisdictional boundaries of the United States District Court for the Central District of 6 || California, Eastern Division. See 28 U.S.C. § 84(c)(1). Petitioner is challenging a 7 || federal conviction and sentence which occurred in Missoula, Montana, which is within 8 || the jurisdictional boundaries of the United States District Court for the District of 9 ||Montana. See 18 U.S.C. § 106. Thus, jurisdiction lies in either the Central District of 10 || California or the District of Montana, but not in the Southern District of California. 11 CONCLUSION 12 For the foregoing reasons, the Court DISMISSES this case without prejudice. 13 || Petitioner is advised that if he wishes to pursue this case, he should file either a petition 14 || for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court 15 || for the Central District of California, Eastern Division, or a motion pursuant to 28 U.S.C. 16 || § 2255 in the United States District Court for the District of Montana. 17 IT IS SO ORDERED. 18 ||Dated: August 27, 2019 Mikal Ta Ll 19 Hon. Michael M. Anello tolls 20 United States District Judge 21 22 23 24 25 26 27 28