United States District Court, W.D. Washington, Tacoma
Richard Creatura, United States Magistrate Judge.
District Court has referred this action to United States
Magistrate Judge J. Richard Creatura. On August 5, 2019,
petitioner John Griffin Headrick, a pre-trial detainee housed
at Grays Harbor County Jail, filed a federal habeas petition
pursuant to 28 U.S.C. § 2241 (the
“petition”). Dkts. 1, 6.
Court has reviewed the petition and it appears that a
petition under § 2241 is not the appropriate way to
remove petitioner's pending state court proceedings to
federal court, the petition is unexhausted, and it is
inappropriate for the Court to intervene in this case.
Therefore, the Court directs petitioner to file an amended
pleading by October 9, 2019. The Court also denies
petitioner's motion to appoint counsel. Dkt. 7.
previously filed a case this Court styled as a
“petition of removal” from state court. See
State of Washington v. Headrick, 19-cv-5015-BHS; Dkt. 6
at 5. In that case, the Court denied petitioner's motion
to proceed in forma pauperis and directed the Clerk
to remand the matter to Grays Harbor Superior Court for the
State of Washington. State of Washington v.
Headrick, Dkt. 5. The Court takes judicial notice of
State of Washington v. Headrick.
now requests removal of his pending criminal charges from
state to federal court in the form of a § 2241 petition.
Dkt. 6. Petitioner states that his previous “petition
for removal” was the wrong procedure. Id. at 5
(citing State of Washington v. Headrick,
19-cv-5015-BHS). He reasserts his claim that the state court
lacks jurisdiction over his pending criminal proceeding. Dkt.
support of his petition, petitioner argues that he is being
held in custody unlawfully because the trial court lacks
jurisdiction and is not the proper venue. Dkt. 6. Petitioner
contends that he is a “mixed-blood Cherokee Indian,
” the alleged offense occurred in “Indian
Country, ” and that the proper venue is the Chehalis
Indian Reservation and/or federal court. Dkt. 6 at 4.
Petitioner requests that the Court dismiss his state court
case for lack of jurisdiction or remand to the Confederated
Tribes of the Chehalis Indian Reservation or federal court.
Dkt. 6 at 24.
outset of a case, a district court must determine whether it
has jurisdiction over a petition filed by a prisoner under
§ 2241. Stephens v. Herrera, 464 F.3d 895, 897
(9th Cir. 2006); Hernandez v. Campbell, 204 F.3d
861, 865 (9th Cir. 2000). Further, the Court must undertake a
preliminary review of the petition to determine whether
“it plainly appears from the face of the petition and
any attached exhibits that the petitioner is not entitled to
relief in the district court.” Rule 4, Rules Governing
Section 2254 Cases; see also28 U.S.C. § 2243
(Rules Governing Section 2254 cases may also be applied to
habeas corpus actions filed under § 2241). If the
petitioner is not entitled to relief, the petition must be
summarily dismissed. Id.; Obremski v.
Maass, 915 F.2d 418 (9th Cir. 1990) (affirming district
court's summary dismissal as a matter of law, but relying
upon Rule 4 rather than Rule 12(b)(6)).
Relief Pursuant to Section 2241
to the petition, petitioner is awaiting a criminal trial in
state court. Dkt. 6. A habeas petition under § 2241
“challenges the execution of a criminal sentence on
grounds that a prisoner ‘is in custody in violation of
the Constitution or laws or treaties of the United
States.'” Benny v. U.S. Parole Commission,
295 F.3d 977, 988 (9th Cir. 2002) (quoting 28 U.S.C. §
2241(c)(3)). If a petitioner establishes that the remedy
under 2255 is inadequate or ineffective, a petitioner may
also use a § 2241 petition to test the legality of his
detention. See 28 U.S.C. § 2255(e). However,
this exception is very limited and courts have rarely found
the remedy under § 2255 to be inadequate or ineffective.
See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.
1999) (citing United States v. Pirro, 104 F.3d 297,
299 (9th Cir. 1997)). For example, the fact that a prior
motion under § 2255 was unsuccessful does not render the
remedy inadequate or ineffective. See id.
although petitioner characterizes the instant petition as
brought pursuant to § 2241, he does not allege any facts
challenging the execution of his sentence. Nor has petitioner
shown that any remedy under § 2255 was inadequate or
ineffective. He simply alleges that his criminal proceeding
should be heard in federal court and appears to restate his
challenge to the state court's jurisdiction already
rejected by this Court. See Dkt. 6 at 5; State
of Washington v. Headrick, 19-cv-5015-BHS.
such a resort to a § 2241 petition is not proper.
Petitioner is not permitted to remove his pending state court
criminal proceedings to federal court. See 28 U.S.C.
§ 1446(a) (A civil action filed in state courts of which
a federal district court has jurisdiction, “may be
removed by the defendant or defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending….”) (emphasis added).
is directed to show cause why this petition is proper under
§ 2241 or file an amended petition ...