Middleton v. Washington State Department of Corrections

103 F. App'x 275

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2004
• Docket: No. 02-35596
• Status: Published

Opinion

MEMORANDUM

**

Washington state prisoners Samuel A. Middleton, David Lee Sykes, and John A. Cole appeal pro se the district court’s judgment dismissing their petition for a writ of audita querela or, alternatively, for a writ of habeas corpus under 28 U.S.C. § 2241. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

A petition for a writ of audita querela is unavailing to appellants because the appropriate vehicle for their challenge to the prison transfer is a 28 U.S.C. § 2254 petition. See White v. Lambert, 370 F.3d 1002, 1005 (9th Cir.2004); cf. United States v. Valdez-Pacheco, 237 F.3d 1077, 1079-80 (9th Cir.2001) (per curiam) (holding that a federal prisoner may not challenge a conviction or sentence by way of a petition for a writ of audita querela when that challenge is cognizable under 28 U.S.C. § 2255).

Even construing appellants’ petition as a § 2241 or a § 2254 petition, appellants’ contentions regarding their temporary transfer out of state to a private correctional facility lack merit. See White, 370 F.3d at 1013.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.