(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)

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Case 2:21-cv-01227-KJN Document 4 Filed 07/19/21 Page 1 of 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA NEIL HARRELL, 12 Petitioner, 13 v. 14 No. 2:21-cv-1227 KJN P FRANK LOPEZ, 15 ORDER Respondent. 16 17 Petitioner, a former state prisoner who appears to be on probation, proceeds pro se with a 18 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, together with an application to 19 proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford 20 21 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 22 28 U.S.C. § 1915(a). 23 Title 28 U.S.C. § 2241 is the proper avenue for a state prisoner who wishes to challenge 24 state custody without a state judgment. Stowe v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004). 25 But the Court of Appeals for the Ninth Circuit holds that 28 U.S.C. § 2254 is the exclusive 26 avenue for a state court prisoner to challenge the constitutionality of his detention. See White v. 27 Lambert, 370 F.3d 1002, 1007-10 (9th Cir. 2004), overruled on other grounds by Hayward v. 28 //// 1 Case 2:21-cv-01227-KJN Document 4 Filed 07/19/21 Page 2 of 2 1 Marshall, 603 F.3d 546 (9th Cir. 2010), overruled on other grounds by Swarthout v. Cooke, 562 2 U.S. 216 (2011). 3 Here, petitioner challenges the constitutionality or validity of his August 23, 2018 4 conviction in the Solano County Superior Court, Case No. FCR336781. (ECF No. 1 at 2.) 5 Therefore, he must bring such challenge in a petition under 28 U.S.C. § 2254 rather than section 6 2241. The § 2241 petition is dismissed, and petitioner is granted leave to file a petition under 7 § 2254. Petitioner is cautioned that failure to comply with this order will result in a 8 recommendation that this action be dismissed for lack of jurisdiction. 9 In accordance with the above, IT IS HEREBY ORDERED that: 10 1. Petitioner’s motion to proceed in forma pauperis is granted; 11 2. Petitioner’s application for writ of habeas corpus is dismissed with leave to amend 12 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 13 14 “Amended Petition”; and 4. The Clerk of the Court is directed to send petitioner the court’s form application for 15 16 writ of habeas corpus. 17 Dated: July 19, 2021 18 19 20 /harr1227.114 21 22 23 24 25 26 27 28 1 By setting this deadline the court is making no finding or representation that the petition is not subject to dismissal as untimely. 2

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