                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 FLORENCIO JOSE DOMINGUEZ,                          No. 18-55209
               Petitioner-Appellant,
                                                      D.C. No.
                      v.                           3:14-cv-02890-
                                                     BAS-RBB
 SCOTT KERNAN, Secretary of the
 California Department of
 Corrections and Rehabilitation,                      OPINION
                Respondent-Appellee.


        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 Jeopardy Clause 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,
Attorney General; Office of the Attorney General, 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 Jeopardy Clause 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 Bravo-
Fernandez 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 controversy because 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
claim of 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.6 In 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 Jeopardy Clause 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. As the 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 of the 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 custody attributable
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 Jeopardy Clause. 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.
