Garrett v. Gore

Opinion

1 2 3 4 5 6 7 10 11 FLOYD LINTELLI GARRETT, Case No.: 20cv0936 GPC (KSC)

12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE WILLIAM H. GORE, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254. He has paid the $5.00 filing fee. (ECF No. 19 3.) 20 Because Petitioner is in custody in the San Diego County Jail awaiting trial, 28 21 U.S.C. § 2241, and not 28 U.S.C. § 2254, is the proper vehicle to challenge his detention. 22 While Petitioner alleges he is being held in custody in violation of the United States 23 Constitution, he is not currently in custody pursuant to a judgment of a state court. As 24 the Ninth Circuit has stated: 25 Section 2254 is properly understood as “in effect implement[ing] the general grant of habeas corpus authority found in § 2241 as long as the 26 person is in custody pursuant to the judgment of a state court, and not in 27 state custody for some other reason, such as pre-conviction custody, custody 28 1 awaiting extradition, or other forms of custody that are possible without a 7 conviction.” [citations omitted. ] 3 || White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (quoting Walker v. O’Brien, 216 4 || F.3d 626, 633 (7th Cir. 2000) (emphasis in original). Accordingly, if Petitioner seeks to 5 || challenge the constitutionality of his pre-trial detention, he must file a petition for writ of 6 habeas corpus pursuant to 28 U.S.C. § 2241, not 28 U.S.C. § 2254. 7 For the foregoing reasons, the Court DISMISSES this case without prejudice. If 8 || Petitioner wishes to challenge the constitutionality of his pre-trial detention he must file a 9 || Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 which will be given a 10 ||new case number. The Clerk of Court shall send a blank Petition for Writ of Habeas 11 || Corpus pursuant to 28 U.S.C. § 2241 form to Petitioner together with a copy of this 12 || Order. 14 || Dated: June 18, 2020 =<

16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28