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Wirth v. Baker, 3:17-cv-00742-MMD-VPC. (2018)

Court: District Court, D. Nevada Number: infdco20180223f44
Filed: Feb. 22, 2018
Latest Update: Feb. 22, 2018
Summary: ORDER MIRANDA M. DU , District Judge . Petitioner, who is in the custody of the Nevada Department of Corrections pursuant to a judgment of conviction of a state court, had filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2241. The Court noted that 28 U.S.C. 2254 governs this case because petitioner is challenging the validity of his custody pursuant to a state-court judgment of conviction, even if he is not challenging the validity of that judgment itself. Currently be
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ORDER

Petitioner, who is in the custody of the Nevada Department of Corrections pursuant to a judgment of conviction of a state court, had filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Court noted that 28 U.S.C. § 2254 governs this case because petitioner is challenging the validity of his custody pursuant to a state-court judgment of conviction, even if he is not challenging the validity of that judgment itself. Currently before the Court are petitioner's motion for reconsideration (ECF No. 6), respondents' opposition (ECF No. 7), and petitioner's reply (ECF No. 8).1 The motion is without merit.

Respondents correctly note that "28 U.S.C. § 2254 is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction." White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). Petitioner will need to file his petition on the Court's § 2254 form.

Petitioner also states in the motion for reconsideration that appointment of counsel would help in this matter. The Court has reviewed petitioner's claims, and the Court determines that appointment of counsel is not necessary in this case.

It is therefore ordered that petitioner's motion for reconsideration (ECF No. 6) is denied.

It is further ordered that petitioner will have thirty (30) days from the date of entry of this order to comply with the Court's earlier order of January 4, 2018 (ECF No. 3).

FootNotes


1. The court also directed petitioner to file an application to proceed in forma pauperis with current financial information or to pay the $5 filing fee. Petitioner does not ask for reconsideration of that part of the court's order.
Source:  Leagle

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