(HC) Harrell v. Lopez

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 7/19/2021 GRANTING #2 Motion to Proceed IFP and DISMISSING #1 Application for Writ of Habeas Corpus with leave to amend within 30 days from the date of this order. (Henshaw, R)

Case 2:21-cv-01227-KJN Document 4 Filed 07/19/21 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSHUA NEIL HARRELL,

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Petitioner,

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v.

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No. 2:21-cv-1227 KJN P

FRANK LOPEZ,

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ORDER

Respondent.

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Petitioner, a former state prisoner who appears to be on probation, proceeds pro se with a

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petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, together with an application to

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proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See

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28 U.S.C. § 1915(a).

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Title 28 U.S.C. § 2241 is the proper avenue for a state prisoner who wishes to challenge

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state custody without a state judgment. Stowe v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004).

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But the Court of Appeals for the Ninth Circuit holds that 28 U.S.C. § 2254 is the exclusive

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avenue for a state court prisoner to challenge the constitutionality of his detention. See White v.

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Lambert, 370 F.3d 1002, 1007-10 (9th Cir. 2004), overruled on other grounds by Hayward v.

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Case 2:21-cv-01227-KJN Document 4 Filed 07/19/21 Page 2 of 2
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Marshall, 603 F.3d 546 (9th Cir. 2010), overruled on other grounds by Swarthout v. Cooke, 562

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U.S. 216 (2011).

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Here, petitioner challenges the constitutionality or validity of his August 23, 2018

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conviction in the Solano County Superior Court, Case No. FCR336781. (ECF No. 1 at 2.)

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Therefore, he must bring such challenge in a petition under 28 U.S.C. § 2254 rather than section

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2241. The § 2241 petition is dismissed, and petitioner is granted leave to file a petition under

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§ 2254. Petitioner is cautioned that failure to comply with this order will result in a

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recommendation that this action be dismissed for lack of jurisdiction.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis is granted;

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2. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend

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within thirty days from the date of this order; 1
3. Any amended petition must bear the case number assigned to this action and the title

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“Amended Petition”; and
4. The Clerk of the Court is directed to send petitioner the court’s form application for

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writ of habeas corpus.

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Dated: July 19, 2021

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/harr1227.114

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By setting this deadline the court is making no finding or representation that the petition is not
subject to dismissal as untimely.
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