Sumlin v. Vidal

Filing 8

Judge William G. Young: ORDER entered denying 4 Motion to allow petition as unopposed. If Sumlin would like to proceed with this action, he must, within 35 days of the date of this order file an amended petition using the standard form for petitions under § 2254. Failure to do say may result in dismissal of this action. The Clerk shall provide Sumlin with the form petition. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DARNELL SUMLIN,
Petitioner,

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v.
OSVALDO VIDAL,
Respondent.

C.A. No. 14-14398-WGY

ORDER
June 16, 2015
On December 8, 2014, Darnell Sumlin, who is confined at MCI
Shirley, filed a petition for a writ of habeas corpus.

Although

it is clear that he is challenging a state conviction, he used a
form petition for those seeking habeas relief under 28 U.S.C.
§ 2241 (“§ 2241”).

He did not pay the $5.00 filing fee or seek

leave to proceed in forma pauperis; a separate order has issued
requiring him to do so.

I have not issued an order requiring the

government to respond.
A prisoner in custody pursuant to the judgment of a state
court may not seek relief under § 2241 to challenge his state
conviction, state sentence, or the execution of his state
sentence.

See Felker v. Turpin, 518 U.S. 651, 662 (1996)

(“[A]uthority to grant habeas relief to state prisoners is
limited by § 2254, which specifies the conditions under which
such relief may be granted to ‘a person in custody pursuant to
the judgment of a State court.’ ” (quoting 28 U.S.C. § 2254(a))).
Therefore, if Sumlin seeks collateral review of his state
conviction in this court, he must file a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 (“§ 2254”).

Unlike § 2241 petitions, petitions § 2254 are subject to
certain statutory requirements, including the exhaustion of state
remedies, a one-year period of limitations, and restrictions on
second or successive petitions.
2254(b).

See 28 U.S.C. §§ 2244(b), (d),

The form § 2254 petition which the court provides

reflects some of these requirements.

If Sumlin chooses to seek

relief under § 2254, he must complete this form petition.

See

Rule 2(d) of the Rules Governing Section 2254 Cases (§ 2254
petition must “substantially follow” the standard § 2254 form
petition or form prescribed by local rules).
Accordingly:
1.

If Sumlin would like to proceed with this action, he

must, within 35 days of the date of this order file an amended
petition using the standard form for petitions under § 2254.
Failure to do say may result in dismissal of this action.

The

Clerk shall provide Sumlin with the form petition.
2.

The motion to allow the petition as unopposed (#4) is

DENIED because no order of service has issued.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE

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