Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jackson v. Atkins

United States District Court, W.D. Washington, Tacoma

May 30, 2018

LOWELL EDWARD JACKSON, Petitioner,
v.
CHUCK E. ATKINS, Respondents.

          REPORT AND RECOMMENDATION

          J. Richard Creatura, United States Magistrate Judge.

         The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner Lowell Edward Jackson filed the petition pursuant to 28 U.S.C. § 2254.

         Petitioner has clarified in an amended petition that he is challenging his pretrial detention in Clark County. However, he filed his petition pursuant to § 2254, which is appropriate when challenging a state court judgment. No. judgment has yet been rendered when the court is reviewing pretrial detention. Pretrial detention can be challenged under 28 U.S.C. § 2241. Therefore, the Court recommends that petitioner's § 2254 habeas petition be dismissed with leave to refile as a § 2241 petition.

         BACKGROUND

         Petitioner initially filed this action pursuant to 28 U.S.C. § 2254 with the District of Oregon in December of 2017. Dkt. 1. The Oregon District Court, noting that petitioner's named respondent was Chuck Atkins, the sheriff of Clark County, Washington, ordered the petition transferred to the Western District of Washington. Dkt. 3. The Court ordered petitioner to show cause or amend because he had failed to name his custodian, the superintendent at the Oregon State Penitentiary where he was housed, as the respondent. Dkt. 7.

         Petitioner filed a response, altering his caption to name Brandon Kelly, the superintendent at the Oregon State Penitentiary, as respondent, and requested that the habeas petition be returned to the District of Oregon. Dkt. 8. The Court again ordered petitioner to show cause or amend his petition. Dkt. 9. The Court explained that, if petitioner was challenging his present confinement based on an Oregon conviction, the Court would dismiss his petition for lack of jurisdiction and allow him to refile in Oregon. Id. Alternatively, if petitioner was challenging future incarceration based on a Washington conviction, he would also need to name the Washington Attorney General as a respondent in order for the Court to entertain the petition. Id.

         Petitioner has now filed an amended petition and a change of address notice. Dkts. 10, 11. Petitioner is now housed at the Clark County Jail. Dkt. 10. He has also renamed Chuck Atkins as the respondent in this action. Dkt. 11. Finally, he has clarified that, when he filed his initial habeas petition, he was not challenging his convictions in either Oregon or Washington. Id. Indeed, he has not yet been convicted in Washington. Id. Rather, he was attempting to challenge the then prospective pretrial custody he is now experiencing in Clark County. Id. He has filed his amended habeas petition again pursuant to § 2254. Id.

         DISCUSSION

         28 U.S.C. § 2254 is designed to allow prisoners being held under state court judgments to challenge those judgments once they have been finalized. 28 U.S.C. § 2254(a) (stating that petitions will be entertained from “a person in custody pursuant to the judgment of a state court . . . .”). For the Court to exercise jurisdiction in a § 2254 petition, the petitioner must be “in custody” under the sentence or conviction he is challenging in his petition. See, e.g., Maleng v. Cook, 490 U.S. 488, 492 (1989). Further, if a petitioner is challenging future custody pursuant to § 2254, he must still challenge a state court judgment. Rules Governing § 2254 Cases, Rule 2(b). However, “habeas corpus relief is not limited to immediate release from illegal custody . . . .” Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). Though petitioner may bring a habeas petition before he is convicted or sentenced, it must be pursuant to 28 U.S.C. § 2241, rather than § 2254. See McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003).

         Petitioner has now clarified that, when he filed his original habeas petition, he was not incarcerated based on the conviction he was challenging. Dkt. 11. Indeed, he has further clarified that he has not yet been convicted in Washington State at all. Id. As such, he has failed to challenge a state judgment, and so his habeas petition is not properly raised under § 2254.

         However, the Court notes a challenge to petitioner's pretrial confinement could be properly brought in a habeas petition pursuant to 28 U.S.C. § 2241. Therefore, now that it appears petitioner is actually in pretrial detention in Clark County, the Court recommends dismissal of the § 2254 petition with leave to refile as a § 2241 petition.

         In light of this recommendation, the Court also recommends petitioner's motion to transfer (Dkt. 8) be denied.

         CERTIFICATE OF APPEALABILITY

         Petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district court's dismissal of the federal habeas petition only after obtaining a certificate of appealability (COA) from a district or circuit judge. A certificate of appealability may issue only if petitioner has made “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.