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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ALAN M. BARTLETT, Case No. 1:19-cv-01370-EPG-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO

DISMISS PETITION FOR WRIT OF

13 v. HABEAS CORPUS

14 PAUL PENZONE,

ORDER GRANTING PETITIONER’S

15 Respondent. MOTION TO PROCEED IN FORMA

PAUPERIS AND DIRECTING CLERK OF

16 COURT TO ASSIGN DISTRICT JUDGE

17 (ECF No. 2) 18 19 Petitioner Alan M. Bartlett is proceeding pro se with a petition for writ of habeas corpus. 20 Given that Petitioner does not reside within this judicial district, does not appear to be 21 incarcerated based upon any judgment issued within this judicial district, and does not challenge 22 his underlying conviction or the fact or duration of his confinement, the undersigned 23 recommends that the petition be dismissed. 24 I. 25 DISCUSSION 26 A. Motion to Proceed In Forma Pauperis 27 Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 2). In order to 1 demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. 2 § 1915(a)(1). Although there is no set formula to determine whether a certain income level meets 3 the poverty threshold under § 1915(a)(1), courts have looked to the federal poverty guidelines 4 developed each year by the Department of Health and Human Services. See Lint v. City of 5 Boise, No. CV09-72-S-EJL, 2009 WL 1149442, at *2 (D. Idaho Apr. 28, 2009); Johnson v. 6 Leohane, No. Civ. 08-00432-ACK-KSC, 2008 WL 4527065, at *1 (D. Haw. Oct. 9, 2008); 7 Johnson v. Spellings, 579 F. Supp. 2d 188, 191 (D.D.C. 2008). 8 The Court has evaluated whether Petitioner meets the standard to proceed in forma 9 pauperis according to 28 U.S.C. § 1915. Based upon the information in his motion to proceed in 10 forma pauperis, the Court finds that Petitioner is indigent and unable to pay the filing fee. 11 Accordingly, Petitioner’s motion to proceed in forma pauperis is granted. 12 B. Federal Habeas Corpus Jurisdiction 13 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 14 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 15 to file a response, if it “plainly appears from the petition and any attached exhibits that the 16 petitioner is not entitled to relief in the district court.” 17 “District courts are limited to granting habeas relief ‘within their respective jurisdictions.’ 18 28 U.S.C. § 2241(a). We have interpreted this language to require ‘nothing more than that the 19 court issuing the writ have jurisdiction over the custodian.’” Rumsfeld v. Padilla, 542 U.S. 426, 20 442 (2004) (quoting Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973)). 21 Additionally, when a state prisoner files a habeas petition in a state that contains two or more 22 federal judicial districts, the petition may be filed in either the judicial district in which the 23 petitioner is presently confined or the judicial district in which he was convicted and sentenced. 24 28 U.S.C. § 2241(d). 25 It appears from the petition that Petitioner was convicted in 2015 in the United States 26 District Court for the District of Alaska and is currently in custody at the Lower Buckeye Jail in 27 Phoenix, Arizona. (ECF No. 1 at 1, 6).1 Based on the information contained in the petition, 1 Petitioner is not presently confined in the Eastern District of California and was not convicted 2 and sentenced in this district. Accordingly, this Court lacks jurisdiction over the instant petition. 3 Additionally, the federal habeas statute provides that a district court may entertain a 4 habeas application by a person “in custody in violation of the Constitution or laws or treaties of 5 the United States.” 28 U.S.C. §§ 2241(c)(3), 2254(a). A claim is cognizable in federal habeas 6 corpus when a petitioner challenges “the fact or duration of his confinement” and “seeks either 7 immediate release from that confinement or the shortening of its duration.” Preiser v. Rodriguez, 8 411 U.S. 475, 489 (1973). 9 Here, Petitioner asserts that the State Bar of California violated his constitutional rights 10 with respect to his misconduct claims against various attorneys. (ECF No. 1 at 1, 6–14). On the 11 face of the petition, Petitioner does not challenge any aspect of his underlying conviction or the 12 fact or duration of his confinement. As the petition also fails to state a cognizable claim for 13 federal habeas relief, it should be dismissed. 14 A petition for habeas corpus should not be dismissed without leave to amend unless it 15 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 16 440 F.2d 13, 14 (9th Cir. 1971). However, as Petitioner is not presently confined in the Eastern 17 District of California and was not convicted and sentenced in this district, the Court finds that 18 these jurisdictional issues cannot be cured by amendment.2 19 II. 20 RECOMMENDATION & ORDER 21 Accordingly, the undersigned HEREBY RECOMMENDS that that the petition for writ 22 of habeas corpus be DISMISSED. 23 Further, IT IS HEREBY ORDERED that: 24 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED; and 25 2. The Clerk of Court is DIRECTED to randomly assign a District Court Judge to the 26 present matter. 27 2 This conclusion does not preclude Petitioner from attempting to pursue cognizable federal habeas claims in the 1 This Findings and Recommendation is submitted to the assigned United States District 2 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 3 | Rules of Practice for the United States District Court, Eastern District of California. Within 4 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 5 | written objections with the court and serve a copy on all parties. Such a document should be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 7 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 8 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 9 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 10 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 0 IT IS SO ORDERED. Dated: _ October 17, 2019 [see ey 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28