(HC) Dunn v. USA et al Doc.

Case 2:06-cv-01659-MCE-EFB Document 9 Filed 08/29/2006 Page 1 of 3

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10 COREY D. DUNN,

11 Petitioner, No. CIV S-06-1659 MCE PAN P

12 vs.

13 USA, et al.,

14 Respondents. FINDINGS AND RECOMMENDATIONS

15 /

16 Petitioner, an individual in state custody who is awaiting trial on federal criminal

17 charges pending in this court in Case No. CR 05-0453 WBS1, has filed an application for habeas

18 corpus relief on a California state court form application for a writ of habeas corpus.2 Petitioner

19 has paid the filing fee of $5.00 for a habeas corpus action. See 28 U.S.C. § 1914(a).

20 /////

21

22 1
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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2
Petitioner’s address of record is the Stanislaus County Public Safety Center in Modesto,
24 California. Records in petitioner’s federal criminal case indicate that petitioner has been returned
to San Quentin State Prison. Good cause appearing, the Clerk of the Court will be directed to serve
25 a copy of this order and findings and recommendations on petitioner at both places. Petitioner is
cautioned that he is required to keep the court informed of his current address. See Local Rule 83-
26 182(f).

Dockets.Justia.com
 Case 2:06-cv-01659-MCE-EFB Document 9 Filed 08/29/2006 Page 2 of 3

1 After further review of the record and good cause appearing, the court’s order

2 filed August 22, 2006, directing respondents to file an answer will be vacated, as will the court’s

3 order filed August 24, 2006, ordering intradistrict transfer of this matter to the Fresno Division of

4 this Court.

5 It appears from the allegations of the application at bar that petitioner’s claims are

6 directed at the pending federal criminal prosecution. The proper forum for petitioner’s claims at

7 this stage is in the pending criminal action, not in a separate habeas action. See generally

8 Fed.R.Crim.P. 12(a). Petitioner’s collateral challenge is premature. Cf. 28 U.S.C. § 2255. See

9 also Withrow v. Williams, 507 U.S. 680, 716 (1993) (Scalia, J., concurring in part and dissenting

10 in part) (citations omitted) (Habeas jurisdiction extends “to federal claims for which an

11 opportunity for full and fair litigation has already been provided in state or federal court ....”) For

12 the foregoing reasons, the court will recommend dismissal of this action.

13 In accordance with the above, IT IS HEREBY ORDERED that:

14 1. The court’s order filed August 22, 2006, directing respondents to file an

15 answer is vacated.

16 2. The court’s order filed August 24, 2006, ordering intradistrict transfer of this

17 case to Fresno Division of this Court is vacated. Accordingly, the Clerk of the Court is directed

18 to reopen Case No. S-06- 1659 MCE PAN P and close Case No. F-06-1130 OWW SMS.

19 4. The Clerk of the Court is directed to serve a copy of this order on petitioner at

20 his address of record and at San Quentin State Prison, San Quentin, CA 94964; and

21 IT IS HEREBY RECOMMENDED that this action be dismissed without

22 prejudice.

23 These findings and recommendations are submitted to the United States District

24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

25 days after being served with these findings and recommendations, petitioner may file written

26 objections with the court. The document should be captioned “Objections to Magistrate Judge’s

2
 Case 2:06-cv-01659-MCE-EFB Document 9 Filed 08/29/2006 Page 3 of 3

1 Findings and Recommendations.” Petitioner is advised that failure to file objections within the

2 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

3 F.2d 1153 (9th Cir. 1991).

4 DATED: August 28, 2006.

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