Opinion
Case No. 08-1073.
March 25, 2008
ORDER
This matter now is before the Court on Petitioner Frankie Barber's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. • • 2241.
Initially, Barber's Petition appears to attack a detainer pursuant to the Interstate Agreement on Detainers. However, upon further review, it appears that Barber actually is challenging his state conviction alleging that the Lake County, Indiana, Superior Court lacked jurisdiction to sentence him. Barber uses Article IV of the Interstate Agreement on Detainers as one of the means to attack his state conviction. Additionally, it appears from the pleadings that Barber is not currently serving his state court sentence but instead is serving a federal sentence in this district.
A habeas corpus petition challenging a state conviction should be filed pursuant to 28 U.S.C. § 2254. A petition for writ of habeas corpus "made by a person in custody under the judgment and sentence of a State court . . . may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him." 28 U.S.C. § 2241(d). Additionally, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 may not be granted unless:
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1).
Accordingly, the Petition [#1] is DISMISSED WITHOUT PREJUDICE. The appropriate procedure for Barber to attack his state conviction is to exhaust all available state post-conviction remedies. If, after exhausting those remedies, Barber still wishes to proceed in federal court, he should file a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the federal district court encompassing the location of his conviction.