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Headrick v. Scott

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

September 10, 2019

RICK SCOTT, Respondent.


          J. Richard Creatura, United States Magistrate Judge.

         The 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.

         The 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.

         I. Background

         Petitioner 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.

         Petitioner 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. 6.

         In 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.

         II. Discussion

         At the 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)).

         A. Relief Pursuant to Section 2241

         According 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.

         Here, 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.

         However, 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).

         Petitioner is directed to show cause why this petition is proper under § 2241 or file an amended petition ...

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