United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge.
Gonzalez (“Petitioner”), proceeding pro se,
brings this habeas corpus action pursuant to 28 U.S.C. §
2254. He paid the $5 filing fee. [Doc. 14.]
Petitioner is a prisoner incarcerated at FCI-Williamsburg, in
Salters, South Carolina, and he seeks to vacate a Texas state
conviction and sentence. In the interest of justice, this
case should be transferred to the United States District
Court for the Western District of Texas (Pecos Division).
alleges that on May 8, 2015, he was convicted by guilty plea
of prohibited substance / item in correctional facility in a
Reeves County, Texas state court. [Doc. 1 at 2-3.] He alleges
he received a sentence of five years concurrent to a twenty
year federal sentence. [Doc. 1-3 at 1.] Petitioner is
currently incarcerated in Salters, South Carolina, at
FCI-Williamsburg apparently serving a federal sentence.
[Docs. 1, 1-3.]
instant case, Petitioner originally completed and filed the
form for petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 and named his current warden in South
Carolina, but he requested to vacate a Texas state conviction
and sentence entered on May 8, 2015. [Doc. 1.] He seemed to
contend that the savings clause contained in 28 U.S.C. §
2255 applies to him such that he is permitted to file a
§ 2241 habeas action in this Court. [Id. at 4.]
However, because Petitioner requested to vacate a Texas state
conviction and sentence, the Clerk of Court construed and
opened the action as pursuant to 28 U.S.C. § 2254.
attempt to clarify which type of action Petitioner intends to
bring and which conviction and sentence he is attacking, this
Court directed Petitioner to respond to special
interrogatories; and he did. [See Docs. 6, 11, 13.]
Petitioner now has clarified that he only attacks
his Texas state conviction and sentence entered on May 8,
2015; and, thus, he completed and submitted the Court's
§ 2254 habeas form naming the state of Texas as the
Respondent. [Docs. 13, 1-3.] It appears that in the instant
case he is not in any way challenging his federal conviction
also contends that he filed a state action in a Texas court
to seek post-conviction relief, and it was finally denied on
June 15, 2016. [Doc. 13 at 2.] He further contends that he
did not file a § 2254 habeas action in the United States
District Court for the Western District of Texas
“because I thought that this Honorable U.S. District
Court has concurrent jurisdiction?” [Id.]
to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2)(c) DSC, the undersigned is authorized
to review such petitions for relief and submit findings and
recommendations to the district court. This Court is charged
with screening Petitioner's lawsuit to determine if
“it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.” Rule 4, Rules Governing Section 2254
Cases in the U.S. District Courts (2012); see also
Rule 1(b) Rules Governing Section 2254 Cases in the U.S.
District Courts (2012) (a district court may apply these
rules to a habeas corpus petition not filed pursuant to
§ 2254). As a pro se litigant, Petitioner's
pleadings are accorded liberal construction and held to a
less stringent standard than formal pleadings drafted by
attorneys. See Erickson v. Pardus, 551 U.S. 89,
93-94 (2007) (per curiam). However, even under this less
stringent standard, the Petition in this case is subject to
summary dismissal or transfer. The requirement of liberal
construction does not mean that the Court can ignore a clear
failure in the pleading to allege facts which set forth a
claim cognizable in a federal district court. See Weller
v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir.
Petitioner originally filed this action on a 28 U.S.C. §
2241 form, the action clearly attacks only a Texas state
conviction and sentence. Thus, the applicable federal statute
is 28 U.S.C. § 2254; and, the Clerk of Court and the
undersigned have construed this case as pursuant to that
statute versus the state of Texas. See Castro v. United
States, 540 U.S. 375, 381 (2003) (“[f]ederal
courts sometimes will ignore the legal label that a pro
se litigant attaches to a motion and recharacterize the
motion in order to place it within a different legal
category.”); Manigault v. Lamanna, C/A No.
8:06-47-JFA-BHH, 2006 WL 1328780 at *4, n.4 (D.S.C. May 11,
2006) (“This Court is not bound by Petitioner's
characterization of his claims because, when considering the
issue of its own jurisdiction, district courts are authorized
to disregard such characterizations to avoid ‘unjust
manipulation or avoidance of its jurisdiction.'”).
Additionally, Petitioner essentially acknowledges that he now
realizes he needs to bring his action pursuant to 28 U.S.C.
§ 2254, and he submitted the appropriate form. [Docs.
13, 1-3.] He further explains that he filed the instant
action in the District of South Carolina, instead of the
United States District Court for the Western District of
Texas, because he believed this Court has concurrent
jurisdiction over the action. [Doc. 13.]
was mistaken; this Court does not have concurrent
jurisdiction over his challenge to his Texas state
conviction. See 28 U.S.C. § 2241(a). This Court
does not have jurisdiction or venue over Petitioner's
§ 2254 action because it does not have the power to
grant the writ versus the state of Texas. See Llovera v.
Florida, C/A No. 4:13-859-TMC-TER, 2013 WL 5468256, at
*5 (D.S.C. Sept. 30, 2013) (explaining that the United States
District Court in South Carolina did not have jurisdiction to
consider a § 2254 petition challenging a Florida state
conviction); see also Cox v. McCabe, C/A No.
3:11-3256-TMC-JRM, 2012 WL 220253, at *2-3 (D.S.C. Jan. 3,
2012) (explaining that a petitioner in custody under a state
court judgment and bringing claims about the validity of his
state criminal conviction can only proceed under § 2254
and not § 2241), adopted, 2012 WL 220 248
(D.S.C. Jan. 24, 2012).
may be transferred pursuant to 28 U.S.C. § 1406(a) and
28 U.S.C. § 1631 if it is “in the interest of
justice” to a district in which the action could have
been brought. See Shaw v. United States, 417 F.
App'x 311 (4th Cir. 2011) (finding that instead of
dismissing the § 2241 Petition, the interest of justice
required the district court to transfer it to the sentencing
court because if petitioner were to file a new § 2255
motion in that district the claims likely would have been
time-barred); Provenzale v. United States, 388 F.
App'x 285 (4th Cir. 2010) (explaining that if a district
court construes a § 2241 petition as a § 2255
motion it would lack jurisdiction to entertain the motion;
thus, the district court must determine whether it would be
in the interests of justice to transfer it).
this Court recognizes that it could recommend dismissal of
this § 2254 action without prejudice, it is in the
interest of justice to transfer this action to the United
States District Court for the Western District of Texas
(Pecos Division) for the following reasons. Petitioner
mistakenly believed this Court has concurrent jurisdiction
over this habeas case; it appears Petitioner has not
previously filed a § 2254 habeas ...