Brewer v. Williams et al

Filing 7

ORDER that petitioners motion for extension of time 6 is GRANTED. The petition for writ of habeas corpus 1 is DISMISSED for lack of jurisdiction. The clerk SHALL ENTER JUDGMENT ACCORDINGLY. Signed by Judge James C. Mahan on 6/11/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ARTHUR JOSEPH BREWER,

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Petitioner,
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vs.
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BRIAN E. WILLIAMS, SR., et al.,
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Respondents.
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____________________________________/

2:11-cv-01734-JCM-VCF
ORDER

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This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which

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petitioner, a state prisoner, is proceeding pro se. On February 9, 2012, the court ordered petitioner to

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submit either a motion for leave to proceed in forma pauperis or the $5.00 filing fee. (ECF No. 4.)

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Petitioner has filed a motion for an extension of time in which to file the required financial documents

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and has simultaneously submitted those documents for the court’s review. (ECF No. 6.) The court

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grants petitioner’s motion for an extension of time and allows petitioner to proceed in forma pauperis.

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Petitioner challenges the legality of his sentence imposed for his Nevada state conviction

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of possession of a stolen vehicle. Petitioner argues that his adjudication as a habitual criminal violated

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the Fourteenth Amendment and that the trial court lacked jurisdiction to impose his sentence. Petitioner

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expressly raises his claims pursuant to 28 U.S.C. § 2241.

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The Ninth Circuit Court of Appeals has held that “28 U.S.C. § 2254 is the exclusive

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vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when

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the petitioner is not challenging his underlying state court conviction.” White v. Lambert, 370 F.3d 1002,

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1009-10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 554 (9th

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Cir. 2010). In this case, petitioner is undisputably in custody pursuant to a state court judgment.

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Therefore, petitioner may not proceed under § 2241, but may only proceed with a habeas action in

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federal court under 28 U.S.C. § 2254. Petitioner filed a petition under 28 U.S.C. § 2254 in case 2:11-cv-

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1556-PMP-PAL approximately one month before filing the instant petition, raising the same claims he

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raises here.1 Accordingly, the court dismisses the petition filed in the instant case pursuant to § 2241

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for lack of jurisdiction.

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IT IS THEREFORE ORDERED that petitioner’s motion for extension of time (ECF
No. 6) is GRANTED.

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IT IS FURTHER ORDERED that the petition for writ of habeas corpus (ECF No. 1)
is DISMISSED for lack of jurisdiction.

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IT IS FURTHER ORDERED that the clerk SHALL ENTER JUDGMENT
ACCORDINGLY.

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11th
Dated this ______ day of June, 2012.

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________________________________
UNITED STATES DISTRICT JUDGE

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Even if this court were to construe the instant petition as a § 2254 petition and further construe
it as a motion to amend the previously filed § 2254 petition under Woods v. Carey, 525 F.3d 886, 888-90
(9th Cir. 2008) (holding that where a new pro se habeas petition is filed before the adjudication of a
prior habeas petition, the new petition should be construed as a motion to amend the pending petition
rather than as a successive application), such a construction would be of no benefit to petitioner because
he raises the same claims in his instant petition as he raises in his petition filed in 2:11-cv-1556-PMPPAL.
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