FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLORENCIO JOSE DOMINGUEZ,

Petitioner-Appellant,

v.

SCOTT KERNAN, Secretary of the

California Department of

Corrections and Rehabilitation,

Respondent-Appellee.

No. 18-55209

D.C. No.

3:14-cv-02890-

BAS-RBB

OPINION

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted June 8, 2018

Pasadena, California

Filed October 23, 2018

Before: Raymond C. Fisher and Morgan Christen, Circuit

Judges, and Edward F. Shea, District Judge.*

Opinion by Judge Fisher

* The Honorable Edward F. Shea, United States District Judge for the

Eastern District of Washington, sitting by designation.
2 DOMINGUEZ V. KERNAN

SUMMARY**

Habeas Corpus

The panel vacated the district court’s dismissal of

Florencio Dominguez’s 28 U.S.C. § 2254 habeas corpus

petition asserting that the state of California’s second

prosecution of him violates the Double Jeopardy Clause, and

remanded.

Dominguez was charged with murder. After his trial

ended in a hung jury, the trial court dismissed the case and

the state filed a new complaint, charging Dominguez with

murder and conspiracy to commit murder. Dominguez filed

a demurrer, arguing the second prosecution violated his rights

under the Double JeopardyClause and California law, but the

trial court overruled his demurrer, and Dominguez was tried

and convicted. Dominguez then asserted his double jeopardy

claim in the § 2254 petition. While that petition was pending,

the state trial court vacated Dominguez’s convictions under

Brady v. Maryland, 373 U.S. 83 (1963), and the state has

elected to retry him on the charge of conspiracy to commit

murder. The state placed Dominguez in pretrial custody,

where he remains. Citing the state court’s decision vacating

the earlier convictions, the district court dismissed

Dominguez’s federal habeas petition as moot.

The panel held that Dominguez’s petition is not moot. 

The panel explained that the petition continues to present a

live controversy because he remains in custody, continues to

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DOMINGUEZ V. KERNAN 3

claim he is in custody in violation of the Constitution of the

United States, and continues to present precisely the same

legal claim that he presented when his petition was filed –

that the state’s second prosecution of him, which remains

ongoing, violates his federal constitutional right not to be

twice placed in jeopardy for the same offense.

The panel also held that because Dominguez’s detention

is no longer attributable to a state court judgment, proceeding

under § 2254 is no longer appropriate, and he is free to seek

habeas relief under 28 U.S.C. § 2241(a) and (c)(3) instead.

The panel held that, to proceed under § 2241, Dominguez

is not required to dismiss his § 2254 petition and file a new

petition under § 2241. The panel held that just as a court may

convert a § 2241 petition to a § 2254 petition when a pretrial

detainee is convicted while a petition is pending, a court has

the authority to convert a § 2254 petition into a § 2241

petition when, as here, a petitioner’s convictions are vacated

during the pendency of the petition and the petitioner has

become a pretrial detainee. The panel instructed that the

district court on remand shall, either upon Dominguez’s

request or at the court’s initiation but with Dominguez’s

consent, convert the petition to one arising under § 2241. The

panel instructed that if Dominguez elects not to convert the

petition, the district court shall dismiss the petition without

prejudice.
4 DOMINGUEZ V. KERNAN

COUNSEL

Matthew J. Speredelozzi (argued) and Patrick Morgan Ford,

San Diego, California, for Petitioner-Appellant.

Kevin Vienna (argued), Deputy Attorney General; Daniel

Rogers, Supervising Deputy Attorney General; Julie L.

Garland, Senior Assistant Attorney General; Xavier Becerra,

AttorneyGeneral; Office of the AttorneyGeneral, San Diego,

California; for Respondent-Appellee.

OPINION

FISHER, Circuit Judge:

Florencio Dominguez was charged with murder. After

his trial ended in a hung jury, the trial court dismissed the

case under California Penal Code § 1385. The state filed a

new complaint, charging Dominguez with murder and

conspiracy to commit murder. Dominguez filed a demurrer,

arguing the second prosecution violated his rights under the

Double JeopardyClause and California law, but the trial court

overruled his demurrer, and Dominguez was tried and

convicted. Dominguez then asserted his double jeopardy

claim in a federal habeas petition under 28 U.S.C. § 2254. 

While that petition was pending, the state trial court vacated

Dominguez’s convictions under Brady v. Maryland, 373 U.S.

83 (1963), and the state has elected to retry him on the charge

of conspiracy to commit murder. The state placed

Dominguez in pretrial custody, where he remains. Citing the

state court’s decision vacating the earlier convictions, the

district court dismissed Dominguez’s federal habeas petition

as moot. Dominguez appeals.
DOMINGUEZ V. KERNAN 5

We hold Dominguez’s petition is not moot. It continues

to present a live controversy because he remains in custody,

continues to claim he is in custody in violation of the

Constitution of the United States and continues to present

precisely the same legal claim that he presented when his

petition was filed – that the state’s second prosecution of him,

which remains ongoing, violates his federal constitutional

right not to be twice placed in jeopardy for the same offense.

We hold, however, that Dominguez is no longer required

to proceed under § 2254. Section 2254 limits the general

grant of habeas authority under 28 U.S.C. § 2241 by placing

additional obstacles in the path of a person seeking habeas

relief when he is “in custody pursuant to the judgment of a

State court.” 28 U.S.C. § 2254(a). Where a petitioner is not

challenging custody attributable to a state court judgment, his

custody does not bear a presumption of validity. 

Section 2254 therefore does not apply, and he is free to seek

habeas relief under § 2241(a) and (c)(3) instead.

Finally, we hold that, to proceed under § 2241,

Dominguez is not required to dismiss his § 2254 petition and

file a new petition under § 2241. Just as a court may convert

a § 2241 petition to a § 2254 petition when a pretrial detainee

is convicted while a petition is pending, we hold that a court

has the authority to convert a § 2254 petition into a § 2241

petition when a petitioner’s convictions are vacated during

the pendency of the petition and the petitioner has become a

pretrial detainee.

We vacate the judgment and remand for proceedings

consistent with this opinion.
6 DOMINGUEZ V. KERNAN

BACKGROUND

Dominguez was charged with murder in 2010 (San Diego

County Superior Court No. SCD225579). His trial resulted

in a hung jury, and the state trial court dismissed the case

under California Penal Code § 1385.1 The state refiled the

criminal complaint (San Diego County Superior Court No.

SCD230596), charging Dominguez again with murder and

adding a new charge for conspiracy to commit murder. See

Cal. Penal Code §§ 182(a)(1), 187(a). Dominguez filed a

demurrer, arguing the second prosecution was barred by

double jeopardy and California Penal Code § 654.2 He

1

See Cal. Penal Code § 1385(a) (“The judge or magistrate may, either

of his or her own motion or upon the application of the prosecuting

attorney, and in furtherance of justice, order an action to be dismissed. 

The reasons for the dismissal shall be stated orally on the record. The

court shall also set forth the reasons in an order entered upon the minutes

if requested by either party or in any case in which the proceedings are not

being recorded electronically or reported by a court reporter. A dismissal

shall not be made for any cause that would be ground of demurrer to the

accusatory pleading.”).

The trial court dismissed the case on the ground that the prosecution

had failed to establish Dominguez had pulled the trigger: “There may

come a time in the future when someone else comes forward to say [it

was] either the defendant or someone else. Because the defendant, if he

didn’t pull the trigger, he knows who did. He’s standing right there. It

may be somebody else, but based on the current state of the evidence, that

can’t be proven. And so at this point the matter is dismissed without

prejudice.”

2

See Cal. Penal Code § 654(a) (“An act or omission that is punishable

in different ways by different provisions of law shall be punished under

the provision that provides for the longest potential term of imprisonment,

but in no case shall the act or omission be punished under more than one

provision. An acquittal or conviction and sentence under any one bars a

prosecution for the same act or omission under any other.”).
DOMINGUEZ V. KERNAN 7

contended the state trial court’s dismissal under § 1385

amounted to a finding of insufficient evidence that operated

as an acquittal for purposes of double jeopardy. See BravoFernandez v. United States, 137 S. Ct. 352, 364 (2016) (“For

double jeopardy purposes, a court’s evaluation of the

evidence as insufficient to convict is equivalent to an

acquittal and therefore bars a second prosecution for the same

offense.”). The state trial court overruled the demurrer.

The second prosecution proceeded to trial, and

Dominguez was convicted on both charges. Dominguez

appealed the convictions, arguing again that the second

prosecution violated double jeopardy. In a reasoned decision,

the California Court of Appeal denied relief, disagreeing with

Dominguez’s contention that the 2010 dismissal constituted

a finding of insufficient evidence. See People v. Dominguez,

No. D060019, 2013 WL 3362112, at *8–10 (Cal. Ct. App.

July 5, 2013). The California Supreme Court denied review.

Dominguez then filed a federal habeas petition under

28 U.S.C. § 2254, renewing his double jeopardy challenge to

the second prosecution. Dominguez argued “the second trial

was barred under the Fifth Amendment” and asked the

district court to “remand the case back to trial court directing

it to grant [his] demurrer on Double Jeopardy grounds.” A

federal magistrate judge recommended the district court grant

the writ, agreeing with Dominguez that the 2010 dismissal

operated as an acquittal, and concluding that the California

Court of Appeal’s decision to the contrary was both an

“The Double Jeopardy Clause of the Fifth Amendment, applicable to

the States through the Fourteenth, provides that no person shall ‘be subject

for the same offence to be twice put in jeopardy of life or limb.’” Brown

v. Ohio, 432 U.S. 161, 164 (1977) (quoting U.S. Const. amend. V).
8 DOMINGUEZ V. KERNAN

unreasonable application of Supreme Court precedent under

§ 2254(d)(1) and based on an unreasonable determination of

the facts under § 2254(d)(2).

Before the district court could rule on the magistrate

judge’s recommendation, a state trial court granted

Dominguez post-conviction relief on an independent ground,

vacating his murder and conspiracy convictions under Brady

v. Maryland, 373 U.S. 83 (1963).3 The trial court vacated the

judgment and ordered the state to either retry Dominguez or

release him. The state has elected to retry Dominguez, but it

is proceeding solely on the conspiracy charge. Dominguez

remains in state custody pending trial.4

When the district court learned of the state court’s

decision vacating the convictions, it ordered the parties “to

show cause as to why [the federal petition] should not be

dismissed as moot.” The state urged the court to dismiss the

petition, arguing that, “[b]ecause Dominguez is no longer in

custody for the murder conviction, he received the relief he

sought in this Court.” Dominguez opposed dismissal, arguing

his petition continued to present a live controversybecause he

“remains in custody facing retrial” and the retrial would

“violate double jeopardy on the exact same grounds

Dominguez claims in this [petition].”

3

In Brady, the Supreme Court held that a state violates a defendant’s

right to due process when it suppresses evidence favorable to an accused

that is material to guilt or punishment. See Cone v. Bell, 556 U.S. 449,

451 (2009).

4

 Unlike Dominguez’s first and second trials, which occurred in two

distinct cases, his second trial and his pending third trial are part of a

single prosecution in a single case, San Diego County Superior Court No.

SCD230596.
DOMINGUEZ V. KERNAN 9

In a January 2018 order, the district court agreed with the

state and concluded Dominguez’s petition was moot:

Dominguez filed this petition under

28 U.S.C. § 2254 to challenge his conviction

for first-degree murder and conspiracy to

commit murder. But the state court has since

vacated this conviction. In doing so, it

extinguished Dominguez’s two claims under

§ 2254. His claim that . . . his second

prosecution violated the Double Jeopardy

Clause . . . does not present a live controversy. 

He is no longer in custody pursuant to the

conviction procured by the second

prosecution. Moreover, unlike cases where

petitioners have completed their sentences but

are still permitted to challenge their

convictions because the convictions cause

collateral consequences, there is no conviction

here for Dominguez to seek to set aside. At

this point, opining on the constitutional

condition of Dominguez’s second prosecution

would be advisory. Therefore, the two claims

raised in Dominguez’s § 2254 petition are

moot.

The court also declined to treat Dominguez’s petition as a

“pre-trial custody petition” under 28 U.S.C. § 2241,

explaining that doing so would require the court to address

three undeveloped issues: Younger abstention; exhaustion;
10 DOMINGUEZ V. KERNAN

and the merits of Dominguez’s double jeopardy claim.5 The

court dismissed Dominguez’s petition as moot and declined

to issue a certificate of appealability.

Dominguez timely appealed, and we issued a certificate

of appealability “with respect to . . . whether the district court

erred by dismissing the petition as moot, including whether

the petition should be construed as a petition under 28 U.S.C.

§ 2241.”

5 Younger v. Harris, 401 U.S. 37 (1971), requires federal courts to

abstain from interfering with pending state criminal proceedings. A

colorable claim that a state prosecution will violate the Double Jeopardy

Clause, however, presents an exception to Younger: “Because full

vindication of the right necessarily requires intervention before trial,

federal courts will entertain pretrial habeas petitions that raise a colorable

claimof double jeopardy.” Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th

Cir. 1992). Because Dominguez has presented a colorable double

jeopardy claim, we hold Younger abstention does not apply.

With respect to exhaustion, there is no dispute that Dominguez

presented a double jeopardy challenge to his second prosecution at all

three levels of the California courts, but the state maintains Dominguez

challenged solely his re-prosecution for murder, not his prosecution for

conspiracy to commit murder, the sole remaining charge. Dominguez

contends he adequately exhausted this claim.

As to the merits, the parties disagree over whether Dominguez’s

claimed acquittal on the murder charge precludes his re-prosecution on the

conspiracy charge. Dominguez argues the collateral estoppel aspects of

double jeopardy apply, see Ashe v. Swenson, 397 U.S. 436 (1970), and

hence that the conspiracy prosecution too is constitutionally barred.
DOMINGUEZ V. KERNAN 11

STANDARD OF REVIEW

“We review de novo the district court’s dismissal of a

habeas petition on the ground of mootness.” Zegarra-Gomez

v. INS, 314 F.3d 1124, 1126 (9th Cir. 2003).

DISCUSSION

A. Dominguez’s Petition Is Not Moot

“[A] case ‘becomes moot only when it is impossible for

a court to grant any effectual relief whatever to the prevailing

party.’” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting

Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298,

307 (2012)). “As long as the parties have a concrete interest,

however small, in the outcome of the litigation, the case is not

moot.” Id. (quoting Knox, 567 U.S. at 307–08).

Here, Dominguez’s petition continues to present a live

controversy, and it remains possible for the district court to

grant him effectual relief.6In his federal habeas petition,

6

“Once the petitioner sustains his burden of demonstrating

entitlement to federal habeas relief, the district court has wide discretion

in choosing the appropriate remedy.” Brian R. Means, Federal Habeas

Manual § 13:5 (2018); see also 28 U.S.C. § 2243 (“The court shall

summarily hear and determine the facts, and dispose of the matter as law

and justice require.”); Hilton v. Braunskill, 481 U.S. 770, 775 (1987)

(“Federal habeas corpus practice, as reflected by the decisions of this

Court, indicates that a court has broad discretion in conditioning a

judgment granting habeas relief.”); 2 Randy Hertz & James S. Liebman,

Federal Habeas Corpus Practice and Procedure § 33.1 (7th ed. 2017)

(“In general . . . , in cases in which a petitioner has established a right to

relief from some unlawful aspect of ‘custody’ in the broad sense, modern

federal habeas corpus practice has moved towards full realization of the
12 DOMINGUEZ V. KERNAN

Dominguez argues his second prosecution is barred by double

jeopardy and asks the district court to “remand the case back

to trial court directing it to grant [his] demurrer on Double

Jeopardy grounds.” Dominguez’s second prosecution is

ongoing, and he continues to argue his second prosecution

violates the Double Jeopardy Clause because his first trial

ended in an acquittal. Were the district court to grant

Dominguez the relief he seeks, he would no longer be subject

to prosecution in state court.

The district court concluded Dominguez’s petition was

moot, but it did so because it viewed the petition as

challenging only “his conviction for first-degree murder and

conspiracy to commit murder.” The court reasoned,

“Because his conviction has been vacated, his two claims

targeting it under § 2254 are moot.” To the extent

Dominguez’s petition challenges those convictions, the

petition is indeed moot, because those convictions have been

vacated, and no collateral consequences flow from them. See

Spencer v. Kemna, 523 U.S. 1, 7–8 (1998); Carafas v.

LaVallee, 391 U.S. 234, 237–38 (1968).

The district court erred, however, by construing

Dominguez’s petition as a challenge solely – or even

primarily – to his convictions rather than to his second

prosecution generally. Properly understood, Dominguez’s

petition continues to present a live controversy because he is

still in custody, he continues to challenge his prosecution on

the same ground and his prosecution is ongoing. The vacatur

statute’s ‘law and justice’ command and has recognized a wide variety of

appropriate remedial orders.”).
DOMINGUEZ V. KERNAN 13

of Dominguez’s convictions changes the procedural posture

of the case but does not render the petition moot.7

In Shute v. Texas, 117 F.3d 233, 236 (5th Cir. 1997), for

example, the petitioner filed a federal petition challenging his

second indictment on double jeopardy grounds. While his

petition was pending, the second indictment was dismissed

for technical reasons, and the state secured a third indictment. 

See id. The Fifth Circuit rejected the suggestion that

dismissal of the second indictment rendered the petition

moot:

In federal court, Shute sought a writ of

habeas corpus on double jeopardy grounds. 

This entailed two requests: (1) an order of

7 Dominguez’s double jeopardy rights are not diminished by the fact

that he is now a pretrial detainee rather than a convicted prisoner. As the

Supreme Court has long recognized, “the Double JeopardyClause protects

an individual against more than being subjected to double punishments. 

It is a guarantee against being twice put to trial for the same offense.”

Abney v. United States, 431 U.S. 651, 660–61 (1977). If this right is not

vindicated before trial, a vitally important aspect of the guarantee is

forever lost. Asthe Court explained in Abney, because it “focus[es] on the

‘risk’ of conviction, the guarantee against double jeopardy assures an

individual that, among other things, he will not be forced . . . to endure the

personal strain, public embarrassment, and expense of a criminal trial

more than once for the same offense.” Id. at 661. “Obviously, these

aspects of the guarantee’s protections would be lost if the accused were

forced to ‘run the gauntlet’ a second time before [the prosecution could be

challenged]; even if the accused is acquitted, or, if convicted, has his

conviction ultimately reversed on double jeopardy grounds, he has still

been forced to endure a trial that the Double Jeopardy Clause was

designed to prohibit.” Id. at 662. Here, Dominguez is a pretrial detainee,

facing trial on what may amount to the same charges the state pursued in

his first two trials. His double jeopardy claim therefore is not moot.
14 DOMINGUEZ V. KERNAN

release from custody and (2) an injunction

against state prosecution. . . .

. . . .

Once the state secured the Third

Indictment, both forms of requested relief

were live again. Shute still wanted release

from custody and still wanted an injunction

against prosecution. Although any state

prosecution would be under a different

indictment from the one attacked before the

district court, this cannot make a difference. 

If the district court had granted the injunction

against state prosecution under the Second

Indictment, prosecution under the Third

Indictment would be barred as well. 

Otherwise, the state always could defeat a

federal double jeopardy habeas ruling by

dismissing an indictment and immediately

securing an identical one.

Shute’s request for . . . relief from custody

. . . remains a live controversy as long as he is

imprisoned.

Id. at 237.

Similarly, in Warnick v. Booher, 425 F.3d 842, 843 (10th

Cir. 2005), the petitioner filed a federal habeas petition

challenging the loss of 155 good-time credits as a violation of

double jeopardy. While the petition was pending, the prison

restored the 155 credits but subtracted another 53 credits.

The Tenth Circuit held the claim was moot as to the
DOMINGUEZ V. KERNAN 15

155 credits but that the case continued to present a live

controversy as to the loss of 53 credits, noting that the

petitioner’s objection to the loss of 53 credits was based on

the same theory that “the subtraction of any credits after his

rebill date violates double-jeopardy principles.” Id. at 846. 

The petitioner therefore was not required to pursue a new

habeas petition. See id.

We hold Dominguez’s § 2254 petition is not moot. The

district court erred by ruling otherwise.8

B. Dominguez Is No Longer Required to Proceed Under

§ 2254

Apart from the issue of mootness, we granted a certificate

of appealability on “whether the petition should be construed

as a petition under 28 U.S.C. § 2241.” We hold that it should

be.

Section 2241 establishes the general authority of the

federal courts to issue habeas relief. It provides that “[w]rits

of habeas corpus may be granted by the Supreme Court, any

justice thereof, the district courts and any circuit judge within

their respective jurisdictions,” 28 U.S.C. § 2241(a), and it

8 A leading habeas treatise explains that double jeopardy claims “are

not mooted by conviction because they challenge not only the legality of

the pretrial detention but also the legality ofthe postconviction detention.” 

1 Hertz & Liebman, supra, § 8.2 n.13. The same principle applies here,

although in the opposite direction: Dominguez’s double jeopardy

continues to present a live controversy because it challenges not only the

legality of his post-conviction detention but also the legality of the second

prosecution generally, including, therefore, the legality of his pretrial

detention.
16 DOMINGUEZ V. KERNAN

specifies five circumstances in which a petitioner may be

granted relief:

(1) He is in custody under or by color of the

authority of the United States or is committed

for trial before some court thereof; or

(2) He is in custody for an act done or omitted

in pursuance of an Act of Congress, or an

order, process, judgment or decree of a court

or judge of the United States; or

(3) He is in custody in violation of the

Constitution or laws or treaties of the United

States; or

(4) He, being a citizen of a foreign state and

domiciled therein is in custody for an act done

or omitted under any alleged right, title,

authority, privilege, protection, or exemption

claimed under the commission, order or

sanction of any foreign state, or under color

thereof, the validity and effect of which

depend upon the law of nations; or

(5) It is necessary to bring him into court to

testify or for trial.

Id. § 2241(c) (emphasis added).

Section 2254, in turn, states:

The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an
DOMINGUEZ V. KERNAN 17

application for a writ of habeas corpus in

behalf of a person in custody pursuant to the

judgment of a State court only on the ground

that he is in custody in violation of the

Constitution or laws or treaties of the United

States.

Id. § 2254(a).

Section 2254 has been understood as limiting the

authority granted by § 2241 rather than supplementing it. As

the Supreme Court has explained, “[o]ur authority 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.’” Felker v. Turpin, 518 U.S. 651, 662 (1996)

(quoting 28 U.S.C. § 2254(a)); see also White v. Lambert,

370 F.3d 1002, 1006 (9th Cir. 2004) (“In contrast to section

2255, section 2254 does not create an alternative to the

habeas corpus remedy provided in section 2241; rather, it

imposes limitations on this remedy.” (quoting Eric Johnson,

An Analysis of the Antiterrorism and Effective Death Penalty

Act in Relation to State Administrative Orders: the State

Court Judgment as the Genesis of Custody, 29 New Eng. J.

on Crim. & Civ. Confinement 153, 168 (2003))), overruled

on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th

Cir. 2010) (en banc); Greenawalt v. Stewart, 105 F.3d 1287,

1287 (9th Cir. 1997) (“The Supreme Court has instructed us

that the authority of the federal courts to grant habeas relief

to state prisoners under § 2241 is limited by 28 U.S.C.

§ 2254.”).

Thus, “a prisoner proceeding under § 2254 is subject to

obstacles a prisoner proceeding under § 2241 is not.” Bryan
18 DOMINGUEZ V. KERNAN

R. Means, Postconviction Remedies § 5:2 (2018). Section

2254, for example, provides that “an application for a writ of

habeas corpus in behalf of a person in custody pursuant to the

judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2254(a) (emphasis added). 

It further provides that “[a]n application for a writ of habeas

corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless it

appears that . . . the applicant has exhausted the remedies

available in the courts of the State.” Id. § 2254(b)(1).9

Section 2244, moreover, provides that “[a] 1-year period of

limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a

State court,” id. § 2244(d)(1), and it places a limit on “second

or successive” § 2254 petitions, see id. § 2244(b). Perhaps

most significantly, the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), provides that “[a]n

application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court” may not

be granted unless the state court’s adjudication of that claim

“resulted in a decision that was contrary to, or involved an

unreasonable application of,” Supreme Court precedent or

“resulted in a decision that was based on an unreasonable

determination of the facts.” Id. § 2254(d).

Congress placed these additional limits on petitions under

§ 2254 because a state court judgment “carries a heightened

presumption of legitimacy.” Johnson, supra, at 171–72. 

Because a state court judgment “is presumptively legitimate,”

9 Even in cases brought under § 2241, exhaustion is required. See

Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). This exhaustion

requirement, however, is judicially created, not statutory.
DOMINGUEZ V. KERNAN 19

moreover, so too is custody attributable to that judgment. See

id. at 172. Congress therefore concluded “it was acceptable

to place obstacles in the paths of prisoners” who are

challenging custody attributable to a state court judgment. 

See id.

Because § 2254 limits the general grant of habeas relief

under § 2241, it “is the exclusive vehicle for a habeas petition

by a state prisoner in custody pursuant to a state court

judgment, even when the petitioner is not challenging his

underlying state court conviction.” White, 370 F.3d at

1009–10. “By contrast, the general grant of habeas authority

in § 2241 is available for challenges by a state prisoner who

is not in custody pursuant to a state court judgment – for

example, a defendant in pre-trial detention or awaiting

extradition.” Id. at 1006.10

Here, Dominguez properly brought his double jeopardy

claim under § 2254 when he filed his petition. At that time,

he was in custody pursuant to a state court judgment and was

challenging his custody attributable to that judgment. We are

persuaded, however, that Dominguez is no longer required to

proceed under § 2254. We reach this conclusion for two

independent yet related reasons.

First, as noted, a petitioner who is “in custody pursuant to

the judgment of a State court” is subject to additional

limitations because the judgment, and the custodyattributable

to that judgment, carry a heightened presumption of

legitimacy. Here, Dominguez’s judgment has been vacated. 

10 A pretrial double jeopardy challenge, for instance, “is properly

brought under § 2241.” Stow v. Murashige, 389 F.3d 880, 886 (9th Cir.

2004).
20 DOMINGUEZ V. KERNAN

He is not in custody pursuant to a judgment of a state court. 

He is a pretrial detainee, and his detention bears no

presumption of validity. He should, therefore, be placed on

an equal footing with other pretrial detainees, who may avail

themselves of habeas relief under § 2241(a) and (c)(3)

without regard to the additional requirements imposed on

petitions under § 2254. See Stow, 389 F.3d at 888.

Second, § 2254 applies to prisoners challenging “custody

pursuant to the judgment of a State court,” and Dominguez is

no longer challenging such a judgment; he is now a pretrial

detainee.

Section 2254(a) “deploys the term ‘in custody’ twice.” 

Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). It states

that “a district court shall entertain an application for a writ

of habeas corpus in behalf of a person [1] in custody pursuant

to the judgment of a State court only on the ground that he is

[2] in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis

added).

As to the first use of the word custody, we have held that

a person is “in custody pursuant to the judgment of a State

court” when “the source of the petitioner’s custody” is a state

court judgment – i.e., when “‘the prisoner’s custody is

attributable, at least in part,’” to such a judgment. White,

370 F.3d at 1007–08 (quoting Johnson, supra, at 162).

With respect to the second use of the word custody, we

have not yet addressed whether it too must be “pursuant to

the judgment of a State court” – i.e., whether there must be a

nexus between “the judgment of a State court” and the

“custody” the petitioner contends is “in violation of the
DOMINGUEZ V. KERNAN 21

Constitution or laws or treaties of the United States.” 

Rulemakers, courts and commentators, however, have all

assumed that this nexus is required.

The Rules Governing 2254 Cases, for example, state:

These rules govern a petition for a writ of

habeas corpus filed in a United States district

court under 28 U.S.C. § 2254 by:

(1) a person in custody under a state-court

judgment who seeks a determination that the

custody violates the Constitution, laws, or

treaties of the United States; and

(2) a person in custody under a state-court or

federal-court judgment who seeks a

determination that future custody under a

state-court judgment would violate the

Constitution, laws, or treaties of the United

States.

Rule 1, Rules Governing Section 2254 Cases in the United

States District Courts, 28 U.S.C.A. foll. § 2254 (emphasis

added). A leading habeas treatise likewise states:

To invoke habeas corpus review by a federal

court, the petitioner must satisfy two

jurisdictional requirements – (1) the status

requirement that the petition be “in behalf of

a person in custody pursuant to the judgment

of a State court”; and (2) the substance

requirement that the petition challenge the

legality of that custody on the ground that it is
22 DOMINGUEZ V. KERNAN

“in violation of the Constitution or laws or

treaties of the United States.”

1 Hertz & Liebman, supra, § 8.1 (footnote omitted)

(emphasis added). As the Seventh Circuit noted in Walker v.

O’Brien, 216 F.3d 626 (7th Cir. 2000), “§ 2254 [is] the

exclusive vehicle for prisoners in custody pursuant to a state

court judgment who wish to challenge anything affecting that

custody.” Id. at 633 (emphasis added).

In light of the language, history and purpose of § 2254,

we conclude § 2254 requires a nexus between “the judgment

of a State court” and the “custody” the petitioner contends is

“in violation of the Constitution or laws or treaties of the

United States.” The custody the petitioner challenges must be

“attributable, at least in part, to a judgment of a State court.” 

White, 370 F.3d at 1007–08 (quoting Johnson, supra, at 162).

This does not mean that a § 2254 petition must present a

challenge to the underlying state court judgment. “[T]he

essence of habeas corpus is an attack by a person in custody

upon the legality of that custody,” Preiser v. Rodriguez,

411 U.S. 475, 484 (1973), not necessarily a challenge to a

judgment. Section 2254, therefore, applies not only to

challenges to a conviction or sentence but also to challenges

to the “execution of a custodial sentence.” Bailey, 599 F.3d

at 982; see, e.g., Preiser, 411 U.S. at 476–77 (§ 2254

challenge to the loss of good-time credits); Spencer, 523 U.S.

at 7 (§ 2254 challenge to the revocation of parole); White,

370 F.3d at 1005 (§ 2254 challenge to an administrative

decision transferring the petitioner from one prison to

another). What matters is that the custody complained of is

attributable in some way to the underlying state court

judgment.
DOMINGUEZ V. KERNAN 23

Here, there is no nexus between Dominguez’s now

vacated judgment and the custody he contends violates the

Double JeopardyClause. Because his pretrial detention is not

attributable in any way to a state court judgment, his double

jeopardy claim does not fall under § 2254.11

In sum, we hold Dominguez is no longer required to

proceed under § 2254. He is no longer “in custody pursuant

to the judgment of a State court,” and the custody he is

challenging is not attributable in any way to a state court

judgment. Dominguez, therefore, is free to proceed under

§ 2241(a) and (c)(3), without satisfying the additional

requirements applicable to § 2254 petitions.

11 We recognize the Supreme Court has held that the “in custody”

requirement of § 2254(a) must be satisfied only at the time the petition is

filed. See Spencer, 523 U.S. at 7 (“Spencer was incarcerated by reason of

the parole revocation at the time the petition was filed, which is all the ‘in

custody’ provision of 28 U.S.C. § 2254 requires.”); Maleng v. Cook,

490 U.S. 488, 490–91 (1989) (per curiam) (“We have interpreted the

statutory language as requiring that the habeas petitioner be ‘in custody’

under the conviction or sentence under attack at the time his petition is

filed.”); Carafas, 391 U.S. at 238 (“[W]e conclude that under the statutory

scheme, once the federal jurisdiction has attached in the District Court, it

is not defeated by the release of the petitioner prior to completion of

proceedings on such application.”). These cases, however, stand for the

limited proposition that, when a petitioner is in custody at the time the

petition is filed, “the federal court may pass on the merits of the petition

even though the prisoner is unconditionally released before the petition is

acted upon, provided that the petitioner still suffers collateral

consequences from the conviction.” 17B Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 4262 (3d ed. 2018). We are

not aware of any authority suggesting that a petitioner must continue to

proceed under § 2254, rather than § 2241, when the custody he currently

is challenging is not attributable in any way to a judgment, and hence

bears no presumption of legitimacy.
24 DOMINGUEZ V. KERNAN

C. Dominguez’s Petition May Be Converted to § 2241

Dominguez, moreover, is not required to dismiss his

§ 2254 petition and file a new petition under § 2241.

Courts and commentators have recognized that, “[i]f the

petition is filed by a pre-trial detainee under § 2241 who is

subsequently convicted, the federal court may convert the

§ 2241 petition to a § 2254 petition.” Means, Postconviction

Remedies, supra, § 5:2 (citing Yellowbear v. Wyoming Att’y

Gen., 525 F.3d 921, 924 (10th Cir. 2008); Jackson v. Coalter,

337 F.3d 74, 79 (1st Cir. 2003)). We now hold that the same

rationale applies where, as here, the opposite situation arises. 

Where a petition is filed by a post-conviction detainee under

§ 2254 and the conviction subsequently is vacated, the federal

court has the authority – at the petitioner’s request or with the

petitioner’s consent – to convert the § 2254 petition to a

§ 2241 petition. Cf. Stow, 389 F.3d at 885 (holding the

petitioner’s pretrial double jeopardy challenge, filed under

§ 2254, should be treated as a petition under § 2241).

D. Remaining Issues

The district court cited two additional potential obstacles

to Dominguez’s double jeopardy claim: (1) whether

Dominguez has adequately exhausted the claim; and

(2) whether the Double Jeopardy Clause bars his prosecution

on a charge of conspiracy to commit murder when his

previous acquittal applied, if at all, solely to the charge of

murder. As the district court noted, these additional issues

were not adequately developed, and the district court did not

reach them. We leave them for the district court to address in

the first instance.
DOMINGUEZ V. KERNAN 25

CONCLUSION

We hold Dominguez’s federal habeas petition continues

to present a live controversy challenging his ongoing second

prosecution as a violation of the Double Jeopardy Clause. 

We further hold Dominguez is no longer required to proceed

under § 2254. Finally, we hold a district court has the

authority to convert a § 2254 petition into a § 2241 petition

where the petitioner’s circumstances change during the

pendency of the proceedings. We vacate the judgment of the

district court and remand for proceedings consistent with this

opinion.

Because Dominguez’s detention is no longer attributable

to a state court judgment, proceeding under § 2254 is no

longer appropriate. On remand, the district court shall, either

upon Dominguez’s request or at the court’s initiation but with

Dominguez’s consent, convert the petition to one arising

under § 2241. If Dominguez elects not to convert the

petition, the district court shall dismiss the petition without

prejudice.

Costs of appeal are awarded to Dominguez.

VACATED AND REMANDED.