United States District Court, W.D. Washington, Seattle
DONALD R. HUNT, Petitioner,
JEFFREY A. UTTECHT, Respondent.
ORDER DENYING MOTION TO TRANSFER OR TO DISMISS
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE
Donald R. Hunt has filed an amended petition for writ of
habeas corpus challenging the computation of good time
credits against his sentence. Dkt. 26. Before the court is
the respondent's motion to transfer the amended petition
to the Ninth Circuit Court of Appeals or to dismiss it for
lack of jurisdiction. Dkt. 27. The court DENIES the motion
and directs respondent to file a response to the
is a Washington state prisoner who filed a petition for
habeas corpus under 28 U.S.C. § 2241 in the Eastern
District of Washington, where he is confined. Dkt. 1. That
court construed the petition as a petition for habeas corpus
under 28 U.S.C. § 2254 and transferred the petition to
this court, as petitioner is confined pursuant to a judgment
and sentence of the Snohomish County Superior Court. Dkt. 8.
This court appointed the Federal Public Defender to represent
petitioner and directed service of the petition on the
respondent. Dkt. 13. The respondent moved to transfer the
petition to the Ninth Circuit pursuant to 28 U.S.C. §
2244(b) and Circuit Rule 22-3(a), or, in the alternative, to
dismiss the petition, asserting that the petition is a second
or successive petition. Dkt. 20. In response, petitioner
stated that one of his two claims, concerning alleged
violations of the Interstate Agreement on Detainers, should
be voluntarily dismissed because it can arguably be
characterized as being cognizable under § 2254 and
therefore subject to § 2244(b). Dkt. 22. He asserted
that his remaining claim, concerning the computation of
credits for good time against his sentence, is properly
governed under § 2241 and therefore outside the purview
of § 2244(b). Id. In light of this response,
the court directed petitioner to file an amended petition and
respondent to file a response thereto. Dkt. 23. Petitioner
filed his amended petition. Dkt. 26. Respondent again seeks
to have the petition transferred or dismissed. Dkt. 27.
PETITION CONSTRUED AS § 2254 PETITION
court noted in addressing petitioner's objection to the
transfer of his petition to this district and to the finding
that it should be construed as a § 2254 petition, Dkt.
23, the Ninth Circuit has held that 28 U.S.C. § 2254 is
the exclusive vehicle for a habeas petition by a state
prisoner in custody pursuant to a state court judgment, even
when the petitioner is not challenging his underlying state
court conviction. White v. Lambert, 370 F.3d 1002,
1009-10 (9th Cir. 2004). The court therefore construes the
amended petition as a § 2254 petition.
court asked the parties to address the issue of venue.
Respondent states that because petitioner is in custody
pursuant to a judgment and sentence of the Snohomish County
Superior Court, this district is the proper venue for this
proceeding. Dkt. 27 at 4. Petitioner states that as he has
been appointed counsel in this district and the court is
familiar with his petition, he believes that venue is most
convenient in this district. Dkt. 26 at 3. Because the court
construes the petition as a § 2254 petition, venue is
proper in this court.
SECOND OR SUCCESSIVE PETITION
argues in his motion to transfer or to dismiss that the
amended petition is a second or successive petition and, as
such, this court should either dismiss the petition or
transfer it to the Ninth Circuit. Dkt. 27 at 6. Under 28
U.S.C.§ 2244(b), a second or successive petition must be
dismissed unless it falls within one of two narrow
exceptions. If a second or successive petition presents
claims that fall within an exception, § 2244(b) requires
a petitioner to first move in the court of appeals for an
order authorizing the district court to consider the
petition. If a petitioner presents a second or successive
petition to the court without such authorization, the court
will refer the petition to the court of appeals. Cir. R.
argues that, as petitioner previously filed a habeas petition
challenging his conviction and sentence,  the amended
petition currently before the court is a second or successive
petition and, under § 2244(b) and Rule 22-3(a), the
court must either dismiss the petition or transfer it to the
Ninth Circuit. Dkt. 27 at 7-8. Respondent asserts that
petitioner “cannot evade the jurisdictional
requirements of § 2244(b) simply by characterizing his
current petition as a § 2241 petition.” Dkt. 27 at
it is true that this petition is the second one petitioner
has filed, the inquiry does not end there. As the Supreme
Court has recognized, the phrase “second or successive
petition” is a term of art. Magwood v.
Patterson, 561 U.S. 320, 332 (2010). The term is not
self-defining, and it does not mean all § 2254 petitions
filed second in time. Panetti v. Quarterman, 551
U.S. 930, 944 (2007). For example, a claim that was unripe at
the time of the first petition is not barred by the second or
successive rule. Id. at 947. And a claim challenging
a new judgment entered after a successful first petition is
not a second or successive petition. Magwood, 561
U.S. at 331-32.
petitioner is not challenging the underlying judgment and
sentence he challenged in his first petition. Rather,
petitioner seeks to challenge the calculation of his
good-time earned, something entirely separate from the
validity of the underlying judgment and sentence. The court
therefore finds that the petition is not a second or
successive petition and therefore not subject to §
2244(b) or Rule 22-3(a).
that is not second or successive is reviewable by the
district court. Magwood, 561 U.S. at 331.
Accordingly, the petition is reviewable in this court. For
this reason, respondent's motion ...