Douglass v. Herrera
Filing
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MEMORANDUM OPINION AND ORDER. ORDERED that the Clerk close Civil Action No. 4:15cv104 as improvidently filed. Signed by Judge Ron Clark on 2/23/2015. (pad, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
STEPHEN CHARLES DOUGLASS, #1906088
§
VS.
§
WARDEN HERRERA
§
CIVIL ACTION NO. 4:15cv104
MEMORANDUM OPINION AND ORDER
Petitioner, represented by counsel, filed an “Action for Writ of Habeas Corpus Ad
Testificandum.” In it, Petitioner asks that he be transported from the Wallace Pack Unit in
Navasota, Texas, to Tyler Texas, so that he may testify in a hearing concerning bankruptcy
proceedings. It appears that Petitioner improvidently filed this action under “nature of suit” 530 a writ of habeas corpus in which state prisoners challenge the constitutionality of their convictions.
In reviewing the action, the court first notes that Petitioner invokes this court’s jurisdiction
pursuant to 28 U.S.C. § 2241. Section 2241 is an action challenging the method in which a
sentence is being executed, Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001), and must be
filed in the same district in which the prisoner is incarcerated, Lee v. Wetzel, 244 F.3d 370, 372
(5th Cir. 2001). Petitioner is incarcerated at the Wallace Pack Unit in Navasota, Texas, in the
county of Grimes. Thus, any action filed pursuant to § 2241 on Petitioner’s behalf should be filed
in the Southern District of Texas, Houston Division.
This action concerns a request to have Petitioner transported from prison to testify at a
bankruptcy hearing; thus, it should arguably be filed in his bankruptcy cases. Petitioner claims,
however, that bankruptcy courts do not issue orders for transporting prisoners for testifying at
hearings. In Hixson v. Hixson, 252 B.R. 195 (Bankr. E.D. Okla. 2000), the petitioner was notified
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that, should he wish to testify, he should file an Application for Writ of Habeas Corpus Ad
Testificandum with the Clerk of the Bankruptcy Court. Although the petitioner failed to file such
application, the bankruptcy court was presumably prepared to rule on the writ. Id. The court in
In re Larson, 232 B.R. 396 (Bankr. W.D. Wis. 1999), also discussed this issue and concluded that
it is not clear whether a bankruptcy court has such authority:
Generally, prisoners who bring civil actions have no absolute right to be present at
any stage of the proceedings. Holt v. Pitts, 619 F.2d 558 (6th Cir. 1980) (citing
Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049, 92 L. Ed.1356 (1948)). . . . Courts
have the power to issue writs “necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §
1651(a). . . . It is not clear whether a bankruptcy court as an adjunct of the district
court has independent authority to issue such a writ.
Id. at 398. Notwithstanding the clarity of the bankruptcy court’s authority to issue such a writ, the
Larson court listed eight factors to be considered in determining whether a writ of habeas corpus
ad testificandum should issue:
1.
The costs and inconvenience of transporting the prisoner from his place of
incarceration to the courtroom;
2.
Any potential danger or security risks [that] the presence of the prisoner would pose
to the court;
3.
Whether the matter at issue is substantial;
4.
The need for an early determination;
5.
The possibility of delaying trial until the prisoner is released;
6.
The probability of success on the merits;
7.
The integrity of the correctional system; and
8.
The interests of the inmate in presenting his testimony in person rather than by
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deposition.
Id. at 398-99 (citing Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir. 1976)).
In the instant case, the United States Bankruptcy Court for the Eastern District of Texas,
Tyler Division, is in the best position to apply the eight factors listed above to determine whether
Petitioner should be transported to testify at the hearing(s). This action should be filed in
Petitioner’s bankruptcy cases through the Clerk of the Bankruptcy Court. Should the Bankruptcy
Court conclude that it does not have the authority to deny or grant the writ, it may certify the
question to the District Court with its recommendation.
At this juncture, the court declines to grant or deny the writ as presented. This matter was
improvidently filed as a 530 prisoner writ of habeas corpus case. It is accordingly
ORDERED that the Clerk close Civil Action No. 4:15cv104 as improvidently filed.
So ORDERED and SIGNED this 23 day of February, 2015.
___________________________________
Ron Clark, United States District Judge
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