DeLaCruz v. Ndoh, 18cv2597 CAB (WVG). (2018)
Court: District Court, N.D. California
Number: infdco20181120b24
Visitors: 6
Filed: Nov. 19, 2018
Latest Update: Nov. 19, 2018
Summary: ORDER CONSTRUING PETITION AS ONE FILED PURSUANT TO 28 U.S.C. 2254 CATHY ANN BENCIVENGO , District Judge . Petitioner, a state prisoner proceeding with counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2241. Although Petitioner filed this action pursuant to 28 U.S.C. 2241, he is a state prisoner attacking the validity of a state court conviction and sentence imposed by the state of California. Therefore, Petitioner may not proceed under section 2241, but ma
Summary: ORDER CONSTRUING PETITION AS ONE FILED PURSUANT TO 28 U.S.C. 2254 CATHY ANN BENCIVENGO , District Judge . Petitioner, a state prisoner proceeding with counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2241. Although Petitioner filed this action pursuant to 28 U.S.C. 2241, he is a state prisoner attacking the validity of a state court conviction and sentence imposed by the state of California. Therefore, Petitioner may not proceed under section 2241, but may..
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ORDER CONSTRUING PETITION AS ONE FILED PURSUANT TO 28 U.S.C. § 2254
CATHY ANN BENCIVENGO, District Judge.
Petitioner, a state prisoner proceeding with counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
Although Petitioner filed this action pursuant to 28 U.S.C. § 2241, he is a state prisoner attacking the validity of a state court conviction and sentence imposed by the state of California. Therefore, Petitioner may not proceed under section 2241, but may only proceed with a habeas action in federal court under 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that section 2254 is the proper jurisdictional basis for a habeas petition brought by an individual "in custody pursuant to a state court judgment"). 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 custody pursuant to the judgment of a state court, and not in state custody for some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a conviction." [citations omitted.] Id. at 1006 (quoting Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (emphasis in original). Accordingly, the Court will construe the petition as one filed pursuant to 28 U.S.C. § 2254.
IT IS SO ORDERED.
Source: Leagle
