Elliott v. Salmonson ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JOEL S. ELLIOTT, Case No. 3:24-cv-00166-ART-CLB 4 Petitioner, ORDER v. 5 S. SALMONSON, WARDEN, FCI 6 HERLONG, 7 Respondent. 8 9 Pro se Petitioner Joel S. Elliott has submitted a petition for writ of habeas 10 corpus under 28 U.S.C. § 2241. (ECF No. 1-1.) However, Elliott has not properly 11 commenced this habeas action by either paying the standard $5.00 filing fee or 12 filing an application to proceed in forma pauperis (“IFP”). Pursuant to 28 U.S.C. 13 § 1914(a) and the Judicial Conference Schedule of Fees, a $5.00 filing fee is 14 required to initiate a habeas action in a federal district court. Alternatively, the 15 Court may authorize an indigent inmate to begin a habeas action without 16 paying the $5.00 fee if he or she submits an IFP application on the approved 17 form and includes three documents: (a) the inmate’s financial declaration and 18 acknowledgement showing an inability to prepay fees and costs, (b) a financial 19 certificate signed by the inmate and an authorized prison official, and (c) a copy 20 of the inmate’s account statement for the six-month period prior to filing. See 21 28 U.S.C. § 1915(a), LSR 1-1, LSR 1-2. 22 As a general matter, the Court provides habeas petitioners the 23 opportunity perfect their defective filing by giving them time to either pay the 24 $5.00 filing fee or submit a complete IFP application with all required 25 documentation. The Court notes, however, that Elliott is incarcerated in the 26 Federal Correction Institution, Herlong, which is located in the Eastern District 27 of California. A habeas action under Section 2241 “must be heard in the 28 custodial court” in which a prisoner is located. Hernandez v. Campbell, 204 1 || F.3d 861, 865 (9th Cir. 2000). The relevant location is where a person is 2 || incarcerated “on the initial filing for habeas corpus relief.” Mujahid v. Daniels, 3 || 413 F.3d 991, 994 (9th Cir. 2005). Thus, aside from the matter of the filing fee, 4 || this Court lacks jurisdiction to hear this matter. 5 When a habeas action under Section 2241 is filed in the wrong district, a 6 || court “shall transfer the action to any other such court in which the action 7 || could have been brought if it is in the interest of justice.” Miller v. Hambrick, 8 || 905 F.2d 259, 262 (9th Cir. 1990) (quotation omitted, citing 28 U.S.C. § 1631). 9 || Transfer is not “in the interest of justice” in this instance. First, Elliot has yet to 10 || yet to properly commence his habeas case in this district because he has not 11 || paid the filing fee or filed an IFP application. Second, according to Elliott’s 12 || petition, he is incarcerated as a result of conviction in the District of Wyoming, 13 || with no indication that he served any part of his prison term in Nevada. See 14 || ECF No. 1-1. Thus, this is not a case in which there is reasonable confusion 15 || about the proper forum for review. See Miller, 905 F.2d at 262. (citing In re 16 || McCauley, 814 F.2d 1350, 1352 (9th Cir. 1987)). 17 It is therefore ordered that this action is dismissed without prejudice. The 18 || Clerk of the Court shall enter judgment accordingly and close this case. 19 DATED THIS 18t day of April 2024. 20 Ars □□□ Td a1 ANNE R. TRAUM 29 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28