The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER CONSTRUING THE PETITION AS ONE PURSUANT TO 28 U.S.C. § 2241 ORDER TO PETITIONER TO SHOW CAUSE WITHIN THIRTY DAYS OF SERVICE OF THIS ORDER WHY THE PETITION SHOULD NOT BE DISMISSED AS MOOT (Docs. 1, 10, 21)
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus ostensibly pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on January 12, 2009.
On June 8, 2009, the Magistrate Judge issued findings and recommendations to deny Petitioner's motions for release and for injunctive relief. (Doc. 10.) In the same document, the Magistrate Judge also recommended dismissal of the petition because Petitioner, who complained of his pretrial detention with respect to state criminal charges, purported to proceed pursuant to 28 U.S.C. § 2254, which authorizes habeas relief for persons in custody pursuant to the judgment of a state court; however, due to the pretrial stage of the state court proceedings, there was no state court judgment to which the custody referred.
The Court adopted the findings and recommendations, and the action was dismissed. Petitioner appealed the judgment. By order filed on December 10, 2009, the judgment of dismissal was summarily vacated, and the case was remanded to allow the Court to consider Petitioner's previously filed objections to the findings and recommendations and to enter a new order. On April 1, 2010, the Magistrate Judge vacated the findings and recommendations. (Doc. 21.)*fn1 On April 14, 2010, the action was assigned to the undersigned Magistrate Judge.
II. Consideration of the Petition as a Proceeding Pursuant to 28 U.S.C. § 2241
The Court has reviewed the previously vacated findings and recommendations as well as the objections filed by Petitioner on July 13, 2009, which the appellate court concluded had not been previously reviewed by the Court. In the objections, Petitioner stated that he was not challenging his detention by the Immigration and Naturalization Service (INS), as had been the case in previous petitions; rather, he was challenging his pretrial detention pursuant to state court processes. (Objs. 2- 3.)
In the petition, Petitioner challenges his detention on criminal charges pending in the Kings County Superior Court involving battery and attempted battery by an inmate on a non-inmate (Cal. Pen. Code § 4501) and obstruction or resisting an officer (Cal. Pen. Code § 69). (Pet. 1.) Petitioner argues that he was an indigent, pretrial detainee, actually innocent of the charges, who was otherwise eligible for pretrial release but was unable to post bail, which was set too high. (Pet. 4-6, 11, 14.) Petitioner alleges that he was served with the information or complaint on December 13, 2007, and he thereafter awaited trial, which was set for early February 2009. The gravamen of his complaint is that because state statutes were not complied with after his arrest, Petitioner was entitled to release on his own recognizance, or to a reasonable bail, and his liberty interest in bail was arbitrarily denied or infringed. (Pet. 1, 5, 7-9.) Petitioner argues that the failure to release him was arbitrary and vindictive, and he seeks immediate release in order to prepare a defense for trial and to support his family. (Pet. 7-8, 18.)
It appears from the petition and from the objections submitted by Petitioner in connection with the Court's vacated findings and recommendation that Petitioner is seeking release on the ground that his pretrial detention pursuant to state court process was unauthorized and unconstitutional.
Although the petition challenges pretrial detention at the hands of state authorities, the Petitioner was a pretrial detainee at the time the petition was filed. Thus, Petitioner was not in custody "pursuant to the judgment of a State court" at the time the petition was filed as provided for by 28 U.S.C. § 2254(a) and(b)(1). In such circumstances, it is appropriate for the petition to proceed pursuant to 28 U.S.C. § 2241. 28 U.S.C. §§ 2254, 2241; Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004). A state pretrial detainee may raise a claim concerning the constitutionality of pretrial delay pursuant to 28 U.S.C. § 2241 because he is not in custody pursuant to the judgment of a state court within the meaning of § 2254. McNeely v. Blanas, 336 F.3d 822, 824 n. 1 (9th Cir. 2003) (pretrial delay concerning right to speedy trial).
Accordingly, the Court considers the petition pursuant to the authority of 28 U.S.C. § 2241.
III. Mootness of the Claim Concerning Pretrial Detention
A claim concerning an arbitrary denial or revocation of bail may be raised in a proceeding for habeas relief. Atkins v. People of State of Michigan, 644 F.2d 543, 549-50 (6th Cir. 1981). However, it is established that a claim concerning the constitutionality of pretrial detention procedures is moot after conviction of the offense because after conviction, such a claim refers to a "prior detention" and thus is moot. Barker v. Estelle, 913 F.2d 1433, 1440 (9th Cir. 1990).
The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 ...