Square v. Louisiana State et al

Filing 7

ORDER DISMISSING CASE. Petitioner's claim for habeas corpus relief under 2254 is dismissed without prejudice on the basis of improper venue and lack of subject matter jurisdiction, as set forth in document. Signed by Judge Greg Gerard Guidry on 07/16/2021.(ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORGE SQUARE

CIVIL ACTION

VERSUS

NO. 20-0610

STATE OF LOUISIANA

SECTION “T”(4)
ORDER

The Court, having considered the complaint, the record, the applicable law, the Report and
Recommendation of the United States Magistrate Judge, and Petitioner’s objection, hereby
partially adopts the Report and Recommendation submitted by the Magistrate Judge. 1 The Court
dismisses Petitioner’s claim but does so without prejudice because dismissal is not predicated on
the merits.
Petitioner was convicted and sentenced in the Western District of Louisiana and is currently
incarcerated in the Middle District of Louisiana. Those Districts have jurisdiction over this § 2254
petition under 28 U.S.C. § 2241(d), but the Eastern District does not. Accordingly, this Court
cannot transfer this case back to one of those Districts. Accord Lee v. Wetzel, 244 F.3d 370, 37374 (5th Cir. 2001) (a court does not have discretion to transfer a habeas petition over which it
lacks jurisdiction).
Petitioner objects to the Report and Recommendation on two grounds, only one of which
warrants discussion here. 2 Petitioner avers that the Western District of Louisiana erroneously
transferred his writ to the Eastern District of Louisiana, and thus argues that the Court should reject
the Magistrate’s recommendation dismissing his appeal with prejudice presumably so that he may
continue litigation elsewhere. The Court finds this argument tenable, because although the Court
1
2

R. Doc. 5.
R. Doc. 6.

1

agrees that it lacks authority to hear or transfer the petition, Petitioner may pursue his writ in the
proper venue should the Court dismiss this case solely on jurisdictional grounds without prejudice.
However, as noted by the Magistrate, Petitioner should note additional jurisdictional issues he may
face in those districts considering the time limitations applicable to his claim. 3
Accordingly, IT IS ORDERED that Petitioner’s claim for habeas corpus relief under §
2254 be DISMISSED WITHOUT PREJUDICE on the basis of improper venue and lack of
subject matter jurisdiction.

16th
New Orleans, Louisiana, this ______ day of July, 2021.

___________________________________
GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE

See R. Doc. 5 at 2 n.1. (“Another jurisdictional issue exists because Square had a prior § 2254 habeas petition
dismissed as time barred with prejudice in the Western District of Louisiana, and he has not indicated that he has
obtained authorization from the United States Fifth Circuit to proceed with a second or successive petition in any
federal district court. See 28 U.S.C. § 2244(b); Square v. La. St. Penitentiary, No. 2000CV2740, Rec. Doc. No. 8
(W.D. La. Jun. 19, 2001).”).
3

2