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Jones-Theophilious v. State

United States District Court, D. Arizona

February 12, 2014

Brett Jones-Theophilious, Petitioner,
v.
State of Arizona, et al., Respondents.

ORDER

DAVID G. CAMPBELL, District Judge.

On January 17, 2014, Petitioner Brett Jones-Theophilious, who is confined in the Metropolitan Detention Center, in Catano, Puerto Rico, filed an "Affidavit in Support of Petition for Writ of Habeas Corpus" (Doc. 1). To facilitate consideration of Plaintiff's Affidavit, the Clerk of the Court designated the Affidavit to be a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on the Court's docket. On February 3, 2014, Petitioner filed an "Affidavit in Support of Respect" (Doc. 3), which appears to be a supplement to his initial Affidavit. Plaintiff has not filed an Application to Proceed In Forma Pauperis and has not paid the filing fee. The Court will dismiss this action without prejudice.

I. Failure to Pay Filing Fee

Rule 3.5(b) of the Local Rules of Civil Procedure requires that "[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall file an application to proceed in forma pauperis on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit." Rule 3.5(b) also requires payment of the $5.00 filing fee if a petitioner has in excess of $25.00 in his inmate account.

Petitioner has not filed an Application to Proceed In Forma Pauperis and has not paid the $5.00 filing fee.

II. Petition is not on the Court-Approved Form

Local Rule of Civil Procedure 3.5(a) requires that petitions for writ of habeas corpus "shall be signed and legibly written or typewritten on forms approved by the Court." The Court may, in its discretion, forgo the requirement that a movant use a court-approved form if Petitioner has substantially complied with the court-approved form. See LRCiv 3.5(a). Here, the Affidavit and Supplemental Affidavit do not substantially comply with the court-approved form.

III. Relief Pursuant to § 2241 is Unavailable for a State Conviction

It appears from Petitioner's Affidavit that he seeks to challenge a state court conviction. To the extent Petitioner may be seeking habeas relief as to a state court conviction, he must bring a case pursuant to 28 U.S.C. § 2254, rather than 28 U.S.C. § 2241. Federal habeas relief pursuant to 28 U.S.C. § 2254 is the "exclusive vehicle" for a state prisoner to seek relief from a state conviction or sentence in federal court. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004) overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). Further, federal habeas relief for a state conviction is available "only on the ground that [an inmate] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In addition, a petitioner who seeks habeas relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court. Rule 2(e), foll. 28 U.S.C. § 2254.

If Petitioner seeks relief as to a state court conviction, he must file a new action pursuant to § 2254. Further, under this Court's local rules, a habeas petitioner must pay the filing fee or file an application to proceed in forma pauperis on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit and must use the court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2254. See LRCiv 3.5.

Because Petitioner has not paid the filing fee or filed an Application to Proceed In Forma Pauperis, has not filed his Petition for Writ of Habeas Corpus on the court-approved form, and appears to seek relief pursuant to 28 U.S.C. § 2254 rather than 28 U.S.C. § 2241, the Court will deny Petitioner's Affidavits (Doc. 1 and Doc. 3) and will dismiss this case without prejudice. The Clerk of the Court will mail Petitioner the court-approved forms for filing an Application to Proceed In Forma Pauperis (Habeas) and for filing a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)."

IT IS ORDERED:

(1) Petitioner's Affidavits (Doc. 1 and Doc. 3) are denied, this action is dismissed without prejudice, and the Clerk of Court must enter judgment accordingly.

(2) The Clerk of Court must mail Petitioner the court-approved forms for filing an Application to Proceed In Forma Pauperis (Habeas) and for filing a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)."


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