Free Case Transferred Out to Another District - District Court of California - California

Case 3:08-cv-01006-IEG-AJB

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Filed 06/26/2008

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UNITED STATES DISTRICT COURT
Southern District of California Office Of The Clerk 880 Front Street, Room 4290 San Diego, California 92101-8900 Phone: (619) 557-5600 Fax: (619) 702-9900 W. Samuel Hamrick, Jr., Clerk of Court June 26, 2008 Clerk, U.S. District Court USDC Northern District of Oklahoma 333 West Fourth Street Tulsa, OK 74103-3819 Re: Joseph A Ellsworth v. S A Holencik, Case No. 3:08-cv-01006-IEG-AJB Dear Sir or Madam: Pursuant to Order transferring the above-entitled action to your District, we are electronically transmitting herewith our entire original file.

Sincerely yours, W. Samuel Hamrick, Jr., Clerk of the Court By: s/ M. Zvers, Deputy Clerk Copy to Attorney for Plaintiffs: Copy to Attorney for Defendants:

Case 3:08-cv-01006-IEG-AJB

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1 2 3 4 5 6 7 8 9 10 11 12 vs. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A petition attacking the validity of a sentence may also be brought under Section 2241 under the "escape hatch" of Section 2255(e) if that section provides an "inadequate or ineffective" remedy. Petitioner makes no argument and raises no facts suggesting his petition implicates this exception. See 28 U.S.C. § 2255(e); Harrison, 519 F.3d at 959. -108cv1006
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

JOSEPH A. ELLSWORTH, Petitioner, S.A. HOLENCIK, WARDEN, and UNITED STATES OF AMERICA, Respondents.

CASE NO. 08cv1006 IEG (AJB) ORDER TRANSFERRING CASE TO NORTHERN DISTRICT OF OKLAHOMA

Petitioner Joseph A. Ellsworth has filed a petition for writ of habeas corpus under 28 U.S.C. §§ 2255 and 2241. As petitioner was not convicted in the Southern District of California and is not incarcerated in this district, this Court is not the appropriate venue for such a petition. Under 28 U.S.C. § 2255, a motion to vacate, correct, or set aside sentence must be brought in the sentencing court. 28 U.S.C. § 2255(a) & (e); Harrison v. Ollison, 519 F.3d 952, 956 (9th Cir. 2008). Petitioner was convicted and sentenced in the Northern District of Oklahoma in case number 99-cr-95 HCR. (Petition at 1.) A motion brought under 28 U.S.C. § 2241, which attacks the manner or conditions of the sentence's execution, is properly brought in the custodial court.1 Harrison, 519 F.3d at 956. In this case, the custodial court is the Central District of California, whose territorial

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jurisdiction includes the Federal Correctional Institution Victorville in Adelanto, California, where petitioner is currently incarcerated. (Petition at 1.) Accordingly, the Court must review the petition to determine whether is it properly characterized as a petition under Section 2255 or 2241. The petition asserts several grounds for vacating petitioner's conviction. Petitioner alleges he is factually innocent of the crime, that his guilty plea was coerced through torture, that the prosecution committed misconduct, that he received ineffective assistance of counsel, and that his federal sentence was mistakenly imposed consecutively to his state sentence. (Petition at 3-9.) These grounds do not pertain to the "manner, location, or conditions of a sentence's execution," but rather the allegations relate to grounds for vacating or setting aside a sentence. Accordingly, the petition is properly characterized as arising under 28 U.S.C. § 2255 and thus venue is proper in the Northern District of Oklahoma. For the foregoing reasons, the Court hereby ORDERS this case transferred to the Northern District of Oklahoma pursuant to 28 U.S.C. § 1406(a) (authorizing district courts to transfer cases to district which is the proper venue).

DATED: June 26, 2008 IRMA E. GONZALEZ, Chief Judge United States District Court

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