Hawkins v. Gore

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER HAWKINS, Case No.: 3:21-cv-1119-BAS-BGS

12 Petitioner, ORDER: 13 v. (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS; 14 AND 15 GORE, Sheriff, et al., (2) CONSTRUING PETITION AS 16 Respondents. BROUGHT UNDER 28 U.S.C. § 2241 17 18 19 Petitioner, a pre-trial detainee proceeding pro se, has submitted a Petition for Writ 20 of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 21 pauperis. 22 23 APPLICATION TO PROCEED IN FORMA PAUPERIS 24 Petitioner has no funds on account at the California correctional institution in which 25 he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court 26 GRANTS Petitioner’s application to proceed in forma pauperis and allows Petitioner to 27 prosecute the above-referenced action without being required to prepay fees or costs and 28 without being required to post security. The Clerk of the Court shall file the Petition for 1 Writ of Habeas Corpus without prepayment of the filing fee. 2 3 BASIS FOR PETITION 4 Although Petitioner filed this action pursuant to 28 U.S.C. § 2254, he is a pretrial 5 detainee attacking the validity of his custody status. (See Pet., ECF No. 1 at 1.) Section 6 2254 applies to prisoners who are in custody pursuant to a state court conviction. White v. 7 Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004). In contrast, 28 U.S.C. § 2241 provides 8 the authority for granting habeas relief to a person “who is not in custody pursuant to a 9 state court judgment” but, rather, who is in custody for some other reason, such as pretrial 10 detention or awaiting extradition. Id. at 1006; see also Stow v. Murashige, 389 F.3d 880, 11 886 (9th Cir. 2004) (Section 2241’s general grant of habeas authority is available to 12 someone who is not in custody pursuant to a state court judgment, such as someone in a 13 criminal trial or awaiting extradition); McNeely v. Blanas, 336 F.3d 822, 824 & n.1 (9th 14 Cir. 2003) (allowing a California pretrial detainee asserting a speedy trial claim to proceed 15 under Section 2241). 16 Here, Petitioner alleges he is being held in custody in violation of the United States 17 Constitution, but he is not currently in custody pursuant to a final judgment of a state court. 18 Thus, Petitioner may not proceed under section 2254, but may proceed with a habeas action 19 in federal court under 28 U.S.C. § 2241. As the Ninth Circuit has stated: 20 Section 2254 is properly understood as “in effect implement[ing] the general grant of habeas corpus authority found in § 2241 as long as the person is in 21 custody pursuant to the judgment of a state court, and not in state custody for 22 some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a conviction.” 23 [citations omitted.] 24 25 White, 370 F.3d at 1006 (quoting Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000)). 26 Accordingly, the Court CONSTRUES the Petition as one brought pursuant to 28 U.S.C. 27 § 2241. See Stow, 389 F.3d at 885–88 (holding that pretrial detainee’s double jeopardy 28 challenge, filed under § 2254, should be treated as a § 2241 petition). I CONCLUSION 2 Based on the foregoing, the Court GRANTS Petitioner’s Motion to Proceed In 3 ||Forma Pauperis (ECF No. 2) and CONSTRUES the Petition as one brought under 28 4 ||U.S.C. § 2241. 5 IT IS SO ORDERED. 6 || Dated: June 16, 2021 | Mn | ~ (Hipthar 7 Hon. Cynthia Bashant 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28