Opinion
NO. 3-04-CV-1505-R.
August 12, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Donald Jackson, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed for lack of subject matter jurisdiction.
I.
In 1980, petitioner pled guilty to separate state indictments charging him with aggravated robbery, robbery, and escape. Punishment was assessed at 25 years confinement in each case. Years later, those state convictions were used to enhance petitioner's sentence on federal robbery and gun charges under the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e)(1). United States v. Jackson, No. 3-93-CR-368-G (N.D. Tex. May 10, 1994), aff'd, No. 99-11299 (5th Cir. Jul. 18, 1995). It is not clear whether petitioner has ever appealed or collaterally attacked his state convictions. However, he has sought post-conviction review of his federal convictions on multiple occasions without success. See United States v. Jackson, No. 3-96-CV-0691-G (N.D. Tex. Oct. 11, 1996), COA denied, No. 96-11429 (5th Cir. Apr. 16, 1997) (section 2255 proceeding); United States v. Jackson, No. 97-00568 (5th Cir. Feb. 2, 1998) (denying leave to file successive section 2255 motion); United States v. Jackson, No. 3-99-CV-1025-G (N.D. Tex. May 24, 1999), COA denied, No. 99-10857 (5th Cir. Dec. 17, 1999) (successive section 2255 motion); United States v. Jackson, No. 3-93-CR-369-G (N.D. Tex. Jul. 19, 2001), appeal dism'd, No. 01-10999 (5th Cir. Mar. 22, 2002) (motion to modify term of imprisonment); United States v. Jackson, No. 3-04-CV-0274-G (N.D. Tex. Mar. 9, 2004) (successive section 2255 motion); United States v. Jackson, No. 3-03-CV-0839-G (N.D. Tex. Apr. 13, 2004), appeal dism'd, No. 04-10373 (5th Cir. Jul. 7, 2004) (writ of error coram nobis). Undeterred, petitioner now seeks federal habeas review of his state convictions under 28 U.S.C. § 2254 in an attempt to lay the predicate for yet another challenge to his federal convictions.
This statute provides, in pertinent part:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).18 U.S.C. § 924(e)(1).
As a result of these frivolous filings, petitioner was sanctioned on two different occasions by the Fifth Circuit. United States v. Jackson, No. 99-10857 (5th Cir. Dec. 17, 1999) (imposing $50.00 sanction); In re Jackson, No. 04-10281 (5th Cir. Apr. 29, 2004) (imposing $150.00 sanction). Petitioner has paid both sanctions.
A federal defendant sentenced under the ACCA must challenge any convictions used for enhancement purposes through available channels of direct appeal or collateral review. Only if such a challenge to the underlying conviction is successful may the defendant seek to reopen his federal sentence. Although the Supreme Court has created an exception for cases in which a prior conviction is attacked on the basis that the defendant was denied counsel contrary to Gideon v. Wainwright, 472 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), petitioner does not challenge his state convictions on that basis. Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 1583, 149 L.Ed.2d 590 (2001); See also United States v. Clark, 284 F.3d 563, 566 (5th Cir. 2002) (suggesting that Daniels may be extend to "rare cases" where no channel of review was actually available to defendant with respect to a prior conviction).
II.
In two grounds for relief, petitioner contends that his aggravated robbery, robbery, and escape convictions are invalid because he received ineffective assistance of counsel and was not properly admonished by the state trial court prior to his guilty pleas. Before addressing these claims, the court must determine whether subject matter jurisdiction properly lies in this district."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 . . ." 28 U.S.C. § 2241(d); see also Ex parte Green, 39 F.3d 582, 583-84 (5th Cir. 1994). These filing requirements are jurisdictional. United States v. Mares, 868 F.2d 151, 152 (5th Cir. 1989). In his federal habeas application, petitioner alleges that he was convicted of aggravated robbery, robbery, and escape by state district courts in Morris County, Texas and Titus County, Texas. Morris County lies within the Marshall Division of the Eastern District of Texas. See 28 U.S.C. § 124(c)(4). Titus County lies within the Texarkana Division of the Eastern District of Texas. See id. § 124(c)(5). Petitioner is currently incarcerated in the federal penitentiary in Beaumont, Texas, which lies within the Beaumont Division of the Eastern District of Texas. Id. § 124(c)(2). It is clear from the face of the pleadings that there is no basis for jurisdiction in the Northern District of Texas. Consequently, this action should be dismissed without prejudice.
Although a habeas petition filed in the wrong court may be transferred to another district or division "in furtherance of justice," see 28 U.S.C. § 2241(d), petitioner does not specify which of his convictions were out of Titus County and which of his convictions were out of Morris County. As a result, the court is unable to transfer this case to another court.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for lack of subject matter jurisdiction.