Opinion
No. C 01-2917 MMC (PR)
August 13, 2001
ORDER OF DISMISSAL WITHOUT PREJUDICE
Petitioner is currently detained by the Immigration and Naturalization Service ("INS") pursuant to an order of removal. The instant action began in October 2000, when petitioner filed a petition for a writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2241, which petition was assigned case number C-00-3700-MMC (PR). Because petitioner was confined in Kern County which lies within the venue of the Eastern District of California, the Court, on October 26, 2000, transferred the action to the Eastern District under 28 U.S.C. § 1404 (a). See generally McCoy v. United States Bd. of Parole, 537 F.2d 962, 966 (8th Cir. 1976) (stating that for petitions brought pursuant to 28 U.S.C. § 2241, the district of confinement "is normally the forum most convenient to the parties").
After reviewing the petition, Magistrate Judge Fields of the Eastern District, noted that the petition contained claims challenging the constitutionality of petitioner's 1996 state court conviction. Whereas claims directed at INS detention are properly brought under 28 U.S.C. § 2241, see INS v. St. Cyr, 121 S.Ct. 2271, 2286-87 (2001), claims directed at a stale court conviction must be brought under 28 U.S.C. § 2254, see Rose v. Hodges, 423 U.S. 19, 21 (1975). Magistrate Judge Fields construed the petition as challenging only the state court conviction because petitioner had also filed a separate habeas petition under 28 U.S.C. § 2241, which petition was pending in the Eastern District (case number 00-6986A WI/DLB) and in which petitioner raised his claims challenging his INS detention. Further construing the petition as one brought under 28 U.S.C. § 2254, and noting that petitioner's conviction was obtained in Monterey County, within the venue of this district. Magistrate Judge Fields transferred the petition back to the Northern District, where it was assigned case number 01-2917 MMC. See Laue v. Nelson, 279 F. Supp. 265, 266 (N.D. Cal. 1968) (finding § 2254 petition most conveniently brought in district of conviction).
This Court hereby adopts Magistrate Judge Fields' construction of the petition. Accordingly, to the extent the instant petition includes claims challenging petitioner's detention by the INS, such claims are DISMISSED without prejudice to petitioner's raising them in his § 2241 habeas petition pending in the Eastern District of California.
To the extent the instant petition includes claims challenging petitioner's state court conviction, such claims also are subject to dismissal. Petitioner indicates in his petition that he has not exhausted his claims directed at his state court conviction. Petitioner must first exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim he seeks to raise in federal court challenging his state conviction. See 28 U.S.C. § 2254 (b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). Accordingly, petitioner's claims directed at his state court conviction are DISMISSED without prejudice to petitioner's raising them in a new federal habeas corpus petition once he has exhausted state remedies. See id.; Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
In light of the dismissal of petitioner's claims, petitioner's application to proceed in forma pauperis is DENIED. All pending motions are TERMINATED.
The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
[x] Decision by court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED petitioner's claims directed at challenging petitioner's detention by the INS are DISMISSED without prejudice to petitioner's raising them in his 2241 habeas petition pending in the Eastern District of California. Petitioner's claims directed at his state court conviction are DISMISSED without prejudice to petitioner's raising them in a new federal habeas corpus petition once he has exhausted state remedies. Petitioner's application to proceed in forma pauperis is DENIED. All pending motions are TERMINATED.