Opinion
3:21-cv-01743
11-28-2023
JACOB MCCORMICK, Petitioner, v. NEIL TURNER, Respondent.
ORDER
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
Petitioner Jacob McCormick has filed a habeas petition. McCormick initially filed his petition under 28 U.S.C. § 2241. Although described as a 28 U.S.C. § 2241 petition, because McCormick challenges a state conviction, not a federal conviction, he should have petitioned under 28 U.S.C. § 2254. “§ 2254 is the ‘exclusive vehicle' of habeas relief for prisoners in custody under a state judgment.”The Court therefore advises McCormick that the Court will consider McCormick's § 2241 petition as a § 2254 petition.
Saulsberry v. Lee, 937 F.3d 644, 647 (6th Cir. 2019) (citations omitted).
One effect of recharacterizing McCormick's petition as a § 2254 petition is that subsequent § 2254 petitions will be subject to the 28 U.S.C. § 2244 limits on “second or successive” petitions.
Considering these limits, and because McCormick is pro se, the Court gives McCormick the option to amend his petition to include any other § 2254 claims he believes he has.
Martin v. Overton, 391 F.3d 710, 713-14 (6th Cir. 2004) (requiring notice before a court can recharacterize a pro se filing as a § 2254 petition); cf. Castro v. United States, 540 U.S. 375, 383 (2003) (before recharacterizing a federal prisoner's motion as a § 2255 motion, courts must provide notice of the consequences and an opportunity to amend the motion).
McCormick must file any amended petition within thirty (30) days of this order. If McCormick does not amend his petition by that deadline, the Court will treat McCormick's currently-pending petition as a § 2254 petition and proceed to consider the Magistrate Judge's report and recommendation and McCormick's objections to those recommendations.
IT IS SO ORDERED.