United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Richard Creatura, United States Magistrate Judge.
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.
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.
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.
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.
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.
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).
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.
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.
light of this recommendation, the Court also recommends
petitioner's motion to transfer (Dkt. 8) be denied.
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)