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Sumlin v. Vidal

United States District Court, D. Massachusetts

June 16, 2015

DARNELL SUMLIN, Petitioner,
v.
OSVALDO VIDAL, Respondent.

ORDER

WILLIAM G. YOUNG, District Judge.

On December 8, 2014, Darnell Sumlin, who is confined at MCI Shirley, filed a petition for a writ of habeas corpus. Although it is clear that he is challenging a state conviction, he used a form petition for those seeking habeas relief under 28 U.S.C. § 2241 ("§ 2241"). He did not pay the $5.00 filing fee or seek leave to proceed in forma pauperis; a separate order has issued requiring him to do so. I have not issued an order requiring the government to respond.

A prisoner in custody pursuant to the judgment of a state court may not seek relief under § 2241 to challenge his state conviction, state sentence, or the execution of his state sentence. See Felker v. Turpin, 518 U.S. 651, 662 (1996) ("[A]uthority to grant habeas relief to state prisoners is limited by § 2254, which specifies the conditions under which such relief may be granted to a person in custody pursuant to the judgment of a State court.'" (quoting 28 U.S.C. § 2254(a))). Therefore, if Sumlin seeks collateral review of his state conviction in this court, he must file a petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254").

Unlike § 2241 petitions, petitions § 2254 are subject to certain statutory requirements, including the exhaustion of state remedies, a one-year period of limitations, and restrictions on second or successive petitions. See 28 U.S.C. §§ 2244(b), (d), 2254(b). The form § 2254 petition which the court provides reflects some of these requirements. If Sumlin chooses to seek relief under § 2254, he must complete this form petition. See Rule 2(d) of the Rules Governing Section 2254 Cases (§ 2254 petition must "substantially follow" the standard § 2254 form petition or form prescribed by local rules).

Accordingly:

1. If Sumlin would like to proceed with this action, he must, within 35 days of the date of this order file an amended petition using the standard form for petitions under § 2254. Failure to do say may result in dismissal of this action. The Clerk shall provide Sumlin with the form petition.

2. The motion to allow the petition as unopposed (#4) is DENIED because no order of service has issued.

SO ORDERED.


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