Valerie Bernice Moore v. Desirae B.M. Moore
- Proceeding
- original
- Outcome
- other — Murashige, 389 F.3d 88
- Area
- civil
- Panel
- Ruth Bermudez Montenegro (author)
Analysis
The court construed a pro se habeas petition filed under 28 U.S.C. § 2254 as one brought under 28 U.S.C. § 2241 because the petitioner is a pretrial detainee. The court dismissed the case without prejudice for failure to pay the $5.00 filing fee or file an application to proceed in forma pauperis.
| What the court decided | The model |
|---|---|
Construed the petition as brought pursuant to 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254.“Accordingly, the Court construes the Petition as one brought pursuant to 28 U.S.C. § 2241.” | agree with court The order recites that the petitioner is a pretrial detainee attacking the validity of her detention, which falls outside the scope of § 2254 (custody pursuant to a final state court conviction) and within the scope of § 2241. The cited Ninth Circuit authority supports this construction. |
Dismissed the case without prejudice for failure to satisfy the filing fee requirement.“Thus because the filing fee has not been satisfied, the case is DISMISSED.” | agree with court The order states the petitioner did not pay the $5.00 fee nor move for in forma pauperis status. Local Rule 3(a) and Habeas Rule 3(a) require either. Dismissal without prejudice is the standard procedural remedy for this deficiency, allowing the petitioner to cure the defect. |
The order itself: sound — The court correctly identified the proper statutory basis for the petition based on the petitioner's status as a pretrial detainee, citing appropriate Ninth Circuit precedent. It then correctly applied the local and federal habeas rules requiring a filing fee or IFP application, dismissing the case without prejudice to allow the petitioner to cure the defect. The reasoning is complete and supported by the cited authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VALERIE BERNICE MOORE, Case No.: 3:26-cv-2988-RBM-SBC 12 Petitioner, ORDER: 13 v. (1) CONSTRUING PETITION FOR 14 DESIRAE B.M. MOORE, HABEAS CORPUS UNDER 28 U.S.C. 15 Respondent. § 2241 AND 16 (2) DISMISSING CASE WITHOUT 17 PREJUDICE 18 19 Petitioner, currently in custody at Los Colinas Detention and Reentry Facility and 20 proceeding pro se, has filed a Petition for Writ of Habeas Corpus.1 (Doc. 1.) 21 I. BASIS FOR PETITION 22 Although Petitioner filed this action pursuant to 28 U.S.C. § 2254, Petitioner states 23 she is a pretrial detainee being “illegally held” and appears to be, at least in part, attacking 24 the validity of her pre-trial detention status. (See Doc. 1 at 3.) Section 2254 applies to 25 prisoners who are in custody pursuant to a final state court conviction. White v. Lambert, 26 27 1 The Petition was originally filed in the United States District Court for the Central District 28 1 370 F.3d 1002, 1009–10 (9th Cir. 2004). In contrast, 28 U.S.C. § 2241 provides the 2 authority for granting habeas relief to a person “who is not in custody pursuant to a state 3 court judgment” but, rather, who is in custody for some other reason, such as pretrial 4 detention. Id. at 1006; see also Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) 5 (explaining that § 2241’s general grant of habeas authority is available to someone who is 6 not in custody pursuant to a state court judgment, such as someone “in pre-trial detention 7 or awaiting extradition.”); McNeely v. Blanas, 336 F.3d 822, 824 & n.1 (9th Cir. 2003) 8 (allowing a California pretrial detainee asserting a speedy trial claim to proceed under 9 § 2241). 10 Accordingly, the Court construes the Petition as one brought pursuant to 28 U.S.C. 11 § 2241. See Stow, 389 F.3d at 885–88 (holding that pretrial detainee’s double jeopardy 12 challenge, filed under § 2254, should be treated as a § 2241 petition). 13 II. FAILURE TO SATSIFY FILING FEE REQUIREMENT 14 The Petition, however, must be dismissed because Petitioner has not paid the $5.00 15 filing fee and has not moved to proceed in forma pauperis. A Petition for Writ of Habeas 16 Corpus must either be accompanied by a $5.00 filing fee or an application to proceed in 17 forma pauperis. See Local Rule 3(a), 28 U.S.C. foll. § 2254; see also Rules Governing 18 Section 2254 Cases in the United States District Courts (“Habeas Rules”), Habeas Rule 19 3(a).2 Thus because the filing fee has not been satisfied, the case is DISMISSED. 20 III. CONCLUSION AND ORDER 21 Accordingly, the Court CONSTRUES the petition under 28 U.S.C. § 2241 but 22 DISMISSES the case without prejudice for failure to satisfy the filing fee requirement. If 23 Petitioner wishes to proceed with this action, she must submit a copy of this Order with the 24 25 26 2 A habeas petition brought pursuant to 28 U.S.C. § 2241 is subject to the same fee 27 requirement as a petition brought pursuant to 28 U.S.C. § 2254. See Habeas Rule 1(b) (providing that district courts may apply the Habeas Rules to habeas petitions not brought 28 1 requisite $5.00 fee or adequate proof she cannot pay the fee no later than June 30, 2026. 2 ||For Petitioner’s convenience, the Clerk of Court shall attach to this Order, a blank 3 || application to proceed in forma pauperis. 4 IT IS SO ORDERED. 5 || Dated: May 18, 2026 Fe Le ; ? L □ 6 HON. RUTH BERMUDEZ MONTENEGRO 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28