Free Order Dismissing Case - District Court of California - California

Case 3:07-cv-02236-JLS-LSP

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Filed 11/30/2007

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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 DK SISTO, WARDEN, CSP SOLANO Respondent. vs. MARTIN EDWARD WALTERS, Petitioner, CASE NO. 07CV2236 ORDER: (1) DISMISSING WITHOUT PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS; (2) DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AS MOOT; AND (3) DENYING MOTION TO APPOINT COUNSEL AS MOOT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner, a prisoner proceeding pro se, has submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [Doc. No. 1], together with a motion for leave to proceed in forma pauperis [Doc. No. 2], and a motion to appoint counsel [Doc. No. 3.]
Although Petitioner filed this action pursuant to 28 U.S.C. § 2241, he is a state prisoner attacking the validity of a state court conviction and sentence imposed by the state of California. Therefore, Petitioner may not proceed under Section 2241, but may only proceed with a habeas action in federal court under 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that Section 2254 is the proper jurisdictional basis for a habeas petition brought by an individual "in custody pursuant to a state court judgment"). Section 2254 is properly understood as "in effect implement[ing] the general grant of habeas corpus authority found in § 2241 as long as the person is in custody pursuant to the judgment of a state court, and not in state custody for some other

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Case 3:07-cv-02236-JLS-LSP

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Filed 11/30/2007

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reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a conviction." [citations omitted.] Id. at 1006 (quoting Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (emphasis in original). Therefore, this Court DISMISSES without prejudice the petition for habeas corpus, DENIES the motion for leave to proceed in forma pauperis as moot, and DENIES the motion to appoint counsel as moot. IT IS SO ORDERED.

DATED: November 30, 2007 Honorable Janis L. Sammartino United States District Judge

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