Opinion
2:21-cv-1227 KJN P
07-19-2021
JOSHUA NEIL HARRELL, Petitioner, v. FRANK LOPEZ, Respondent.
ORDER
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
Petitioner, a former state prisoner who appears to be on probation, proceeds pro se with a petition for a writ of habe as corpus pursuant to 28 U.S.C. § 2241, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Title 28 U.S.C. § 2241 is the proper avenue for a state prisoner who wishes to challenge state custody without a state judgment. Stowe v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004). But the Court of Appeals for the Ninth Circuit holds that 28 U.S.C. § 2254 is the exclusive avenue for a state court prisoner to challenge the constitutionality of his detention. See White v. Lambert, 370 F.3d 1002, 1007-10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010), overruled on other grounds by Swarthout v. Cooke, 562 U.S. 216 (2011).
Here, petitioner challenges the constitutionality or validity of his August 23, 2018 conviction in the Solano County Superior Court, No. FCR336781. (ECF No. 1 at 2.) Therefore, he must bring such challenge in a petition under 28 U.S.C. § 2254 rather than section 2241. The § 2241 petition is dismissed, and petitioner is granted leave to file a petition under § 2254. Petitioner is cautioned that failure to comply with this order will result in a recommendation that this action be dismissed for lack of jurisdiction.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's motion to proceed in forma pauperis is granted;
2. Petitioner's application for writ of habeas corpus is dismissed with leave to amend within thirty days from the date of this order;
By setting this deadline the court is making no finding or representation that the petition is not subject to dismissal as untimely.
3. Any amended petition must bear the case number assigned to this action and the title “Amended Petition”; and
4. The Clerk of the Court is directed to send petitioner the court's form application for writ of habeas corpus.