(HC) James Payne v. Audrey King, No. 1:2014cv00538 - Document 29 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that the Court Convert the Petition for Habeas Corpus Brought Under 28 USC 2241 to a Petition Under 28 USC 2254, signed by Magistrate Judge Barbara A. McAuliffe on 7/22/15. Objections to F&R due by Within Thirty Days. Referred to Judge O'Neill. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JAMES PAYNE, Petitioner, 11 12 13 14 v. AUDREY KING, Executive Director of Coalinga State Hospital, Case No. 1:14-cv-00538-LJO-BAM HC FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT CONVERT THE PETITION FOR HABEAS CORPUS BROUGHT UNDER 28 U.S.C. § 2241 TO A PETITION UNDER 28 U.S.C. § 2254 Respondent. 15 16 Petitioner proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 17 § 2241. Since May 9, 2013, he has been confined in the custody of the California Department of 18 Mental Health pursuant to the Sexually Violent Predator Act (California Welfare and Institutional 19 Code §§ 6600 et seq.) ("SVPA"). The petition sets forth multiple grounds for habeas relief. 20 21 In her answer, Respondent contends that the petition is improperly brought under § 2241 and urges the Court to treat the petition as if it had been properly brought under 28 U.S.C. § 2254. 22 23 24 Respondent points out that the Court has previously recognized that Petitioner has filed under an incorrect statute. In its Order Requiring Respondent to File a Response to the Petition (Doc. 12), 25 the Court referred to the petition as having been "purportedly filed pursuant to 28 U.S.C. § 2241," 26 but neither explained its use of the term, "purportedly," nor addressed the propriety of the case's 27 proceeding under § 2241. (Respondent contends that the Court intended to convert the petition to 28 one governed by § 2254 since it cited the "Rules Governing Section 2254 Cases." Doc. 12. The 1 1 Court's reference is not dispositive since a court may also apply the Rules Governing Section 2254 2 Cases to habeas petitions other than those brought under § 2254. See Rules Governing Section 2254 3 Cases, Rule 1 (b).) 4 "Section 2241 provides a remedy for federal prisoners . . . (1) to challenge the execution of a 5 sentence, and (2) to test the legality of a detention when § 2255 is otherwise inadequate." See Brian 6 R. Means, Federal Habeas Manual § 1:29 at 36 (2014). The exclusive remedy of person in custody 7 pursuant to a state court judgment is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 8 9 2254. White v. Lambert, 370 F.3d 1002, 1007 (9th Cir. 2004), overruled on other grounds by 10 Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). Because Petitioner is confined pursuant to a 11 state court judgment, the undersigned RECOMMENDS that the Court (1) convert the § 2241 12 petition to a § 2254 petition and (2) direct that the documentation filed in this case be construed 13 14 according to the law governing petitions brought under § 2254. These Findings and Recommendations will be submitted to the United States District Judge 15 16 assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days 17 after being served with these Findings and Recommendations, either party may file written 18 objections with the Court. The document should be captioned AObjections to Magistrate Judge's 19 Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within 20 fourteen (14) days after service of the objections. The parties are advised failure to file objections 21 within the specified time may constitute waiver of the right to appeal the District Court's order. 22 Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 23 24 25 26 27 1394 (9th Cir. 1991)). IT IS SO ORDERED. Dated: /s/ Barbara July 22, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 28 2 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 3

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