McPherson v. Davis

Filing 7

OPINION AND ORDER OF TRANSFER to Northern District of Texas, Fort Worth Division. (Signed by Magistrate Judge Jason B Libby) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
AMARIO LYNN MCPHERSON,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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ENTERED
April 10, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 2:18-CV-77

OPINION AND ORDER OF TRANSFER
This is a habeas action filed on March 19, 2018, by a state prisoner incarcerated at the
McConnell Unit in Beeville, Texas, which is located in Bee County.

(D.E. 1).

In his

complaint, Petitioner challenges his Tarrant County murder conviction and life sentence. (D.E.
1 and D.E. 7). Petitioner has filed at least one other habeas petition asserting he is not in
custody pursuant to a judgment of a state court for purposes of § 2254 and therefore, a federal
court has authority to grant him federal habeas relief under 28 U.S.C. § 2241. See McPherson
v. Davis, 4:17-CV-1005-O (N.D. Tex. Jan. 4, 2018) (Order of Transfer).1 However, § 2254
provides the exclusive remedy for a state prisoner challenging the fact or duration of his
confinement and seeking an immediate or speedier release. Id. (citing Wolff v. McDonell, 418
U.S. 539, 554 (1974)).
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Petitioner’s previous § 2241 action was initially filed in this Court and then transferred to the
Northern District of Texas, Fort Worth Division. See Case No. 2:17-cv-379. After the transfer,
Petitioner’s case was then construed as a § 2254 action and transferred to the Fifth Circuit Court of
Appeals so Petitioner could seek authorization to file a successive § 2254 petition as he had filed three
prior federal petitions under § 2254. See McPherson v. Davis, 4:17-CV-1005-O (N.D. Tex. Jan. 4,
2018) (Order of Transfer). The Fifth Circuit then dismissed the case after Petitioner failed to comply
with the Court’s January 5, 2018 notice. See In re: Amario McPherson, No. 18-10012 (5th Cir. Feb.
19, 2018) (Clerk Order denying authorization to file successive habeas petition).

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A habeas action may be filed either in the district where petitioner is in custody or in
the district in which petitioner was convicted. 28 U.S.C. § 2241(d); Wadsworth v. Johnson,
235 F.3d 959 (5th Cir. 2000). Petitioner’s place of incarceration is in the Corpus Christi
Division of the Southern District of Texas, 28 U.S.C. § 124(b)(6), and he was convicted by a
court located in Tarrant County in the Fort Worth Division of the Northern District of Texas.
28 U.S.C. § 124(a)(2).
For the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been brought.
28 U.S.C. §§ 1404(a) and 1406(a). A habeas application may be transferred in furtherance of
justice to the district court within which the state court was held which convicted and
sentenced the petitioner. 28 U.S.C. § 2241(d). Because Petitioner was convicted in Tarrant
County, it is more convenient and would further the interests of justice for this action to be
handled in the Fort Worth Division of the Northern District of Texas. The records of his
conviction and the prosecutor and defense lawyers are all located in the Fort Worth Division of
the Northern District of Texas.
Accordingly, it is ordered that this case be transferred to the United States District Court
for the Northern District of Texas, Fort Worth Division. All pending motions are DENIED
subject to refiling in the Northern District of Texas, Fort Worth Division. The Clerk of Court
is directed to CLOSE this case.
ORDERED this 10th day of April, 2018.
___________________________________
Jason B. Libby
United States Magistrate Judge
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