Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 5:08-cv-02238-RMW

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Filed 07/03/2008

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*E-FILED - 7/3/08*

IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ELIAS HERNANDEZ-MORALES,
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Petitioner,
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vs.
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MARTY ANDESON, Respondents.

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No. C 08-2238 RMW (PR) ORDER OF DISMISSAL

(Docket No. 4)

Petitioner, a federal prisoner proceeding pro se, filed a petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at a medical
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center for federal prisoners in Springfield, Mississippi. In the petition, he states that he is
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challenging a federal conviction and sentence obtained in Del Rio, Texas, for illegal re22

entry after deportation. Petitioner states that he previously filed a motion to vacate his
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sentence pursuant to 28 U.S.C. § 2255.
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Petitioner may not proceed with the instant petition under 28 U.S.C. § 2254.
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Section 2254(a) allows a federal court to entertain a petition for a writ of habeas corpus
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only "in behalf of person in custody pursuant to the judgment of a state court." 28 U.S.C.
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§ 2254(a). As petitioner is a federal prisoner challenging a conviction and sentence from
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Case 5:08-cv-02238-RMW

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federal court, he may not obtain federal habeas relief under 28 U.S.C. § 2254. While petitioner may challenge his federal conviction or sentence in a motion filed under 28 U.S.C. § 2255, such a motion must be filed in the federal district court in Texas where he was convicted and sentenced. See United States v. Addonizio, 442 U.S. 178, 185 (1979). As petitioner indicates that he has previously filed a motion to vacate his sentence under 28 U.S.C. § 2255, he is cautioned that he must first obtain certification from the United States Court of Appeals before he may challenge the same sentence or conviction a second time under 28 U.S.C. § 2255. See 28 U.S.C. § 2255. For the reasons discussed above, the instant petition is DISMISSED for failure to state a cognizable claim for relief. The application to proceed in forma pauperis is GRANTED. The clerk shall terminate docket number 4 and close the file. IT IS SO ORDERED. Dated:

7/1/08
RONALD M. WHYTE United States District Judge

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