Opinion
3:04-CV-0628-K
April 2, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS Type of Case: This action was submitted by a state inmate on the civil rights complaint form. As more fully set out below, this action should be construed as a habeas corpus action pursuant to 28 U.S.C. § 2254.
Parties: Plaintiff is presently confined at the Polunsky Unit, formerly known as the Terrell Unit in Livingston, Texas. Although he names 26 individuals on the first page of his complaint, he provides the position, place of employment and mailing address for only a few them. (See Complaint at p. 2 ¶ IV). The court has not issued process in this case.
Findings and Conclusions: Plaintiff seeks to be "free[d]. . . from death row execution. . . . " (Complaint at p. 4 ¶ VI). Since the above request challenges Plaintiff's capital murder conviction and death sentence, his claim is cognizable only in the context of a habeas corpus action pursuant to 28 U.S.C. § 2254.See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973);Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987) (where a petitioner attacks the duration of his confinement, "`the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under § 1983.'"); see also Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (a petition for a writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam) (same).
28 U.S.C. § 2241(d), which governs federal habeas corpus jurisdiction, provides that a federal habeas petition may be filed either in the district of incarceration or in the district of conviction.Carmona v. Andrews, 357 F.3d 535, 538 (5th Cir. 2004);Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000).
Plaintiff was convicted of capital murder and sentenced to death in the Third Judicial District Court of Anderson County, Texas, Cause No. 22753. Anderson County is located in the Eastern District of Texas, Tyler Division. Plaintiff is currently confined in Polk County, which lies in the Eastern District of Texas, Lufkin Division.
Because the conviction under attack arose in the Tyler Division of the Eastern District of Texas, and Petitioner is incarcerated within the Eastern District of Texas, the Northern District of Texas lacks jurisdiction over any petition for writ of habeas corpus. Accordingly, this case should be dismissed for want of jurisdiction. RECOMMENDATION:
It appears Plaintiff filed one previous habeas petition, pursuant to 28 U.S.C. § 2254, on which relief was denied. See Patterson v. Cockrell, No. 4:98cv156 (E.D. Tex. Jan. 2001), affirmed, No. 01-40447, 2003 WL 21355999 (5th Cir. May 23, 2003) (unpublished opinion). Plaintiff also filed eleven additional actions, which were construed as habeas actions and either transferred to the Fifth Circuit as successive habeas petitions, or dismissed because of Plaintiff's repeated refusal to seek leave to file a successive habeas petition from the Fifth No. 6:01cv467 (E.D. Tex., Tyler Div.); Patterson v. Director. 6:02cv064 (E.D. Tex., Tyler Div.); Patterson v. Director, No. 2:02cv 134 (E.D. Tex., Marshall Div.); Patterson v. State. No. 2:02cv225 (E.D. Tex., Marshall Div.); Patterson v. TDC. No. 2:02cv248 (E.D. Tex., Marshall Div.); Patterson vs. TDC. 2:02cv300 (E.D. Tex., Marshall Div.); Patterson v. TDC. 2:03cv006 (E.D. Tex., Marshall Div.); Patterson v. TDC. 2:03cv324 (E.D. Tex., Marshall Div.); Patterson v. TDC. 2:03cv455 (E.D. Tex., Marshall Div.); Patterson v. Director. 2:04cv60 (E.D. Tex., Marshall Div.).
Since the state court in which Patterson was convicted is located in the Eastern District of Texas only a federal court in that district has jurisdiction to consider a § 2254 petition. However, it appears that Petitioner may be required to seek leave from the Fifth Circuit to file a successive petition (See Attachment 1).
For the foregoing reasons, it is recommended that Plaintiff's complaint, construed as a petition for a writ of habeas corpus, be dismissed for want of jurisdiction.
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n. 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.