1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 CRISTIAN STEVE HERAS MORALES, Case No.: 23cv1230 CAB (AHG) 11

Petitioner, 12 ORDER DISMISSING CASE v. WITHOUT PREJUDICE 13 M. ARVIZA, Warden, et al., 14 Respondents. 15 16 17 Petitioner, a federal prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to

(see ECF No. 1), but has failed to pay the 19 $5.00 filing fee and has failed to move to proceed in forma pauperis. 20 FAILURE TO SATISFY FILING FEE REQUIREMENT 21 Because this Court cannot proceed until Petitioner has either paid the filing fee or 22 qualified to proceed in forma pauperis, the Petition is subject to dismissal without 23 prejudice. See CivLR 3.2; Rules 1(b), 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to 24 proceed with this action, he must submit a copy of this order with the requisite $5.00 fee 25 or adequate proof he cannot pay the fee. 26 VENUE 27 A habeas petition filed pursuant to § 2241 must be brought in the district in which 28 the petitioner is presently confined while a challenge under § 2255 must be brought in the 1 district in which the petitioner was convicted. Hernandez v. Campbell,

, 865 2 (9th Cir. 2000). Petitioner is currently incarcerated at the Federal Correctional Institution 3 Mendota, located in Fresno County, California. (See ECF No. 1 at 1.) As such, § 2241 4 jurisdiction exists in Petitioner’s district of confinement, the Eastern District of California, 5 and not in the Southern District. See 28 U.S.C. 84(b); see also e.g. Dunne v. Henman, 875

, 249 (9th Cir. 1989) (“Where . . . a prisoner challenges the manner in which the 7 federal authorities are executing his federal sentences, it is not necessarily advantageous to 8 have the federal district court which sentenced him resolve his section 2241 habeas corpus 9 petition . . . The proper forum to challenge the execution of a sentence is the district where 10 the prisoner is confined.”), citing United States v. Giddings,

(9th Cir. 11 1984). 12 Meanwhile, “[a] prisoner in custody under sentence of a court established by Act of 13 Congress claiming the right to be released upon the ground that the sentence was imposed 14 in violation of the Constitution or laws of the United States, or that the court was without 15 jurisdiction to impose such sentence, or that the sentence was in excess of the maximum 16 authorized by law, or is otherwise subject to collateral attack, may move the court which 17 imposed the sentence to vacate, set aside or correct the sentence.”

(a) 18 (emphasis added). While Petitioner has a criminal judgment issued by the Southern 19 District of California, he appears to indicate he is not intending to proceed with a challenge 20 under § 2255. (See ECF No. 77 in So. Dist. Cal. Case No. 20cr2184-CAB-1; see also ECF 21 No. 1 at 2.) However, in an abundance of caution and because the instant habeas action in 22 any event remains subject to dismissal for failure to satisfy the filing fee requirement, the 23 Court will provide Petitioner an opportunity to clarify whether he intends to proceed with 24 a challenge under § 2241 or § 2255. 25 CONCLUSION AND ORDER 26 The Petition is DISMISSED without prejudice for failure to satisfy the filing fee 27 requirement. To have this case reopened, Petitioner must submit a copy of this Order with 28 the $5.00 fee or with adequate proof of his inability to pay the fee, no later than 1 ||September 5, 2023. For Petitioner’s convenience, the Clerk of Court shall send a blank 2 ||Southern District of California In Forma Pauperis Application to Petitioner along with a 3 || copy of this Order. 4 With respect to venue, to the extent Petitioner is attempting to proceed with a habeas 5 || action pursuant to § 2241, he may do so by filing a Petition under

in his 6 ||present district of confinement as discussed above, currently the Eastern District of 7 California. If Petitioner instead intends to challenge a conviction and judgment entered in 8 |{the Southern District of California, any such challenge may not be brought by way of 9 2241 but may only be brought by way of § 2255. 10 || IT IS SO ORDERED. 11 ||/Dated: July 7, 2023 € □ 12 Hon. Cathy Ann Bencivengo 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28