Middleton

Middleton v. Washington State Department of Corrections

Good Law
103 F. App'x 275
United States Court of Appeals for the Ninth CircuitJuly 15, 2004No. 02-35596California208 words

Opinion

Lead Opinion

MEMORANDUM **

Washington state prisoners Samuel A. Middleton, David Lee Sykes, and John A. Cole appeal pro se the district court’s judgment dismissing their petition for a writ of audita querela or, alternatively, for a writ of habeas corpus under 28 U.S.C. § 2241 . We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

A petition for a writ of audita querela is unavailing to appellants because the appropriate vehicle for their challenge to the prison transfer is a 28 U.S.C. § 2254 petition. See White v. Lambert, 370 F.3d 1002, 1005 (9th Cir.2004); cf. United States v. Valdez-Pacheco, 237 F.3d 1077, 1079-80 (9th Cir.2001) (per curiam) (holding that a federal prisoner may not challenge a conviction or sentence by way of a petition for a writ of audita querela when that challenge is cognizable under 28 U.S.C. § 2255 ).

Even construing appellants’ petition as a § 2241 or a § 2254 petition, appellants’ contentions regarding their temporary transfer out of state to a private correctional facility lack merit. See White, 370 F.3d at 1013 .

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided…

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