McCollum v. Davis
Filing
16
ORDER TO TRANSFER CASE to United States District Court, Northern District of Texas, Dallas Division. Case reopened on 5/2/2019.(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
FRANK D MCCOLLUM III,
TDCJ #02021347,
Petitioner,
VS.
LORIE DAVIS,
Respondent.
May 02, 2019
David J. Bradley, Clerk
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§ CIVIL ACTION NO. 3:18-CV-186
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ORDER TO REOPEN AND TRANSFER CASE
In this habeas action, Petitioner Frank D. McCollum, III, filed an original
proceeding in the United States Court of Appeals for the Fifth Circuit (Dkt 1). The
appellate court transferred the petition to this Court (Dkt. 4). On August 2, 2018, the
Court dismissed the petition without prejudice for failure to exhaust state court remedies
(Dkt 7), noting that Petitioner had filed a writ of mandamus in the Texas Court of
Criminal Appeals (WR-86,370-01) but had not filed an application for state habeas relief.
Petitioner now has exhausted his remedies in state court by filing a state habeas
application (WR-86,370-02). He seeks to reopen this federal habeas action (Dkt. 9). In
compliance with the Court’s previous instructions (Dkt. 11), Petitioner now has filed a
form petition (Dkt. 12).
The petition challenges a state court conviction in Dallas
County, Case Number F-1133471-J. After reviewing the pleadings, the Court concludes
that this action must be transferred for reasons set forth briefly below.
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Because the petitioner is in custody pursuant to a judgment and sentence by a state
court in Texas, which has more than one federal district, jurisdiction over the petition is
determined by the place of conviction or the place of confinement, as follows:
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.
28 U.S.C. § 2241(d). The Fifth Circuit has emphasized that, under § 2241(d), a petitioner
may seek a federal writ of habeas corpus in one of only two places: (1) the district in
which the state court conviction was entered, or (2) the district within which the
petitioner is incarcerated. See Wadsworth v. Johnson, 235 F.3d 959, 962 (5th Cir. 2000).
Dallas County, where the challenged state court conviction was entered, is located
in the Northern District of Texas, Dallas Division. See 28 U.S.C. § 124(a)(1). The
Terrell Unit, where the petitioner is presently incarcerated, is located in Brazoria County,
which is in the Southern District of Texas, Galveston Division.
§ 124(b)(1).
See 28 U.S.C.
Although the petition was properly filed here for purposes of Section
2441(d), the challenged conviction that has no ties to this district. Under these
circumstances, a transfer is appropriate. See Mitchell v. Henderson, 432 F.2d 435, 436
(5th Cir. 1970) (concluding that the division of conviction, where witnesses were located,
was a more appropriate venue than the division of confinement in challenge to
conviction).
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In the exercise of its discretion and in furtherance of justice, this Court will
transfer the petition pursuant to Section 2241(d) and Southern District policy.
See General Order of May 30, 1985 (dictating that challenges to the conviction go to the
division within the district where the conviction was entered).
For the reasons stated above the Court ORDERS as follows:
1.
Petitioner’s motion to reopen (Dkt. 9) is GRANTED.
The Clerk is
instructed to REOPEN this habeas action.
2.
The Clerk will TRANSFER this habeas action to the United States District
Court for the Northern District of Texas, Dallas Division.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 2nd day of May, 2019.
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George C. Hanks Jr.
United States District Judge
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