Rasheed v. Walker

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 5/27/2010 ORDERING that petitioner's ifp has not been filed; and this matter is TRANSFERRED to the USDC for the Northern District of California. CASE CLOSED. (Yin, K)

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1 2 3 4 5 6 7 8 9 10 11 Petitioner, 12 vs. 13 J. WALKER, Warden, 14 Respondent. 15 / 16 17 18 19 20 21 22 23 24 25 26 Although this application was filed on January 25, 2010, due to a Clerk's Office docketing error, it has just come to this court's attention. 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA TAHEE ABD' RASHEED aka JAMES SMITH, No. CIV S-10-0192 GGH P ORDER Petitioner, a state prisoner proceeding pro se, has filed a document entitled "28 U.S.C. § 1651(a) (All Writs Act....)", which the court will liberally construe as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Petitioner has not filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner's filing is somewhat difficult to unravel. Petitioner claims to be falsely imprisoned in violation of Cal. Penal Code §§ 1382, 1182, 1170.12 A-D and the Sixth and Fourteenth Amendments. Petition, p. 1. Within his petition, he appears to be challenging the same San Mateo County conviction that he has, apparently successively, been attacking since at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 least 2004. The court takes judicial notice2 of two Fresno Division cases, Case No. CIV-S-045352 AWI DLB and Case No. CIV-06-1040 AWI SMS, both of which were transferred to Northern District which encompasses the San Mateo County Superior Court. While both this Court and the United States District Court in the district where petitioner was convicted have jurisdiction, see Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), any and all witnesses and evidence necessary for the resolution of petitioner's application are more readily available in San Mateo County. Id. at 499 n.15; 28 U.S.C. § 2241(d).3 Accordingly, in the furtherance of justice, IT IS HEREBY ORDERED that: 1. Petitioner's application to proceed in forma pauperis has not been filed; and 2. This matter is transferred to the United States District Court for the Northern District of California. DATED: May 27, 2010 /s/ Gregory G. Hollows 15 16 17 18 19 20 21 22 23 24 25 26 2 Nevertheless, on the face of it, this application appears, at a minimum, to be a second successive petition for which petitioner must first seek authorization by the Ninth Circuit before proceeding. See 28 U.S.C. 2244(b)(3); Rule 9, Rules Governing Section 2254 Cases. 3 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE GGH:009/mp rash0192.108 Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981). 2

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