United States District Court, E.D. Louisiana
KENNETH W. MITCHELL
DARREL VANNOY, WARDEN
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the court on a petition seeking habeas
corpus relief pursuant to 28 U.S.C. § 2254 from the
petitioner's 2013 conviction and sentence for aggravated
rape and cruelty to persons with infirmities. Petitioner,
Kenneth W. Mitchell, alleges that he was convicted in the
Fourth Judicial District Court for Morehouse Parish,
Louisiana. Rec. Doc. No. 1, Petition at p. 1. Morehouse
Parish is located within the Western District of Louisiana.
28 U.S.C. § 98(c). Petitioner is currently incarcerated
in the Louisiana State Penitentiary in Angola, Louisiana,
which is in West Feliciana Parish within the Middle District
of Louisiana. 28 U.S.C. § 98(b).
U.S.C. § 2241(d) provides:
Where an application for a writ of habeas corpus is made by a
person in custody under the judgment and sentence of a State
court of a State which contains two or more Federal judicial
districts, the application may be filed in the district
court for the district wherein such person is in custody or
in the district court for the district within which the State
court was held which convicted and sentenced him and
each of such district courts shall have concurrent
jurisdiction to entertain the application. The
district court for the district wherein such an application
is filed in the exercise of its discretion and in furtherance
of justice may transfer the application to the other district
court for hearing and determination.
(emphasis added). The United States Court of Appeals for the
Fifth Circuit has held that this statute is jurisdictional.
Carmona v. Andrews, 357 F.3d 535, 537 (5th Cir.
2004); Webb v. Beto, 362 F.2d 105, 108 (5th Cir.
1966), cert. denied, 385 U.S. 940, reh'g
denied, 386 U.S. 930 (1967). Thus, this court lacks
subject matter jurisdiction to consider Mitchell's
petition, since he is not incarcerated in this district,
either at the time he filed his complaint or currently, and
he was not convicted or sentenced in this district. Mitchell
has no discernable connection with this district.
addition, however, because this court lacks jurisdiction, it
also lacks authority to transfer the petition to the either
the Western District of Louisiana, where Mitchell was
convicted, or the Middle District of Louisiana, where he
currently is incarcerated, either of which being a district
where the petition may properly be filed. Although some
courts have held that such transfer orders may be made,
United States ex rel. Ayala v. Tubman, 366 F.Supp.
1268, 1269-71 (E.D.N.Y. 1973); United States ex rel.
Ruffin v. Mancusi, 300 F.Supp. 686, 686 (E.D.N.Y. 1969),
the better view appears to be that when a habeas corpus
petitioner files his petition in a district court that lacks
subject matter jurisdiction to grant relief, that court also
lacks authority to transfer the case to a court of proper
jurisdiction. United States ex rel. Jimenez v.
Convoy, 310 F.Supp. 801, 802 (S.D.N.Y. 1970); United
States ex rel. Griffin v. LaVallee, 270 F.Supp. 531, 532
the arguably laudatory purposes of transferring such
petitions to the correct district (e.g., saving a
pro se petitioner the time and expense of refiling),
prohibiting such transfers is the better view because
“(t)he defect [in such an improperly filed habeas
petition] is not merely one of improper venue, but of lack of
subject matter jurisdiction, which is fundamental and
cannot be disregarded.” Jimenez, 310
F.Supp. at 802 (emphasis added). Even a thoroughly and
somewhat persuasively reasoned decision like Ayala
primarily bases its view that a transfer order is permissible
on an interpretation indicating that Section 2241(d) is more
in the nature of a venue statute than a jurisdictional
statute. 366 F.Supp. at 1270.
there is certainly case law authority to support transfer of
this case to the Western or Middle Districts of Louisiana, a
literal interpretation of the statute, particularly its
express use of the word “jurisdiction” rather
than venue and the clear implication of its second sentence
that a permissible transfer is only from one court with
jurisdiction to another with jurisdiction, coupled with the
Fifth Circuit's clear holding in Webb that the
statute is jurisdictional, persuades me that because this
court lacks subject matter jurisdiction, it should not
address the case further. Accord Lee v. Wetzel, 244
F.3d 370, 373-74 (5th Cir. 2001) (a court does not have
discretion to transfer a habeas petition over which it lacks
jurisdiction.) “If the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed.R.Civ.P. 12(h)(3)
of the foregoing reasons, IT IS RECOMMENDED
that Mitchell's petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254 be dismissed without
prejudice for lack of subject matter jurisdiction. Petitioner
is instructed that if he seeks federal habeas corpus relief
he must file his petition in either the Middle District of
Louisiana in Baton Rouge or the Western District of Louisiana
alternative, IT IS RECOMMENDED that, if the
district judge determines that transfer is the preferable
remedy, the case be transferred to the Western District of
Louisiana, where petitioner was convicted.
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to ...