Morris v. McKenna

Filing 28

ORDER requesting the Court of Appeals remand this matter to this Court so that it may reconsider its prior Order. Signed by Judge Ronald B. Leighton. (CMG; cc to Petitioner, CCA)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIS MATTER comes on sua sponte. v. ROB MCKENNA, et al, Respondents. TEDDY MORRIS, Petitioner,

HONORABLE RONALD B. LEIGHTON

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA Case No. C09-5345RBL ORDER

On June 8, 2009, the Petitioner filed a Petition for Writ of Habeas Corpus and an Application to Proceed In Forma Pauperis [Dkt. #1]. He indicated the Petition was filed under 28 U.S.C. § 2241. On July 1, 2009 the Court granted the Application to Proceed In Forma Pauperis and directed the Petition be filed and served [Dkt. #5]. The Respondent subsequently filed an Answer and requested that the Petition be dismissed under either 28 U.S.C. § 2241 or § 2254 [Dkt. #12]. On October 20, 2009 a Magistrate Judge issued a Report and Recommendation which analyzed the Petition under 28 U.S.C. § 2254 and recommended that the Petition be dismissed without prejudice because: (1) the Petition was unexhausted; and (2) Petitioner was not "in custody" for purposes of 28 U.S.C. § 2254. [Dkt. #18]. On November 13, 2009, the Court entered an Order adopting the Magistrate Judge's Report and Recommendation dismissing the Petition [Dkt. #19] and Judgment was entered on November 17, 2009 [Dkt. #20]. The Petitioner filed a Notice of Appeal on December 2, 2009 [Dkt. #22] and the Court entered an Order

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denying a certificate of appealability on January 5, 2010 [Dkt. #26]. The Court has reviewed this matter and is now of the opinion that it has incorrectly analyzed the Petition under 28 U.S.C. § 2254. It appears that the analysis should have been made under 28 U.S.C. § 2241 and 42 U.S.C. § 1983. However, because Petitioner filed a Notice of Appeal, this Court is without jurisdiction to correct the error. Therefore, pursuant to Fed. R. App. P. 12.1, this Court hereby requests that the Court of Appeals remand this matter to this Court so that it may reconsider its prior Order. The Clerk shall send uncertified copies of this order to all counsel of record, to any party appearing pro se, and to the United States Court of Appeals for the Ninth Circuit. Dated this 7th day of January, 2010.

A

RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE

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