IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EUGENE ABNER, #00642616, §

PETITIONER, §

§

V. § CIVIL CASE NO. 3:22-CV-920-C-BK

§

WARDEN BRITT, §

RESPONDENT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Petitioner Eugene Abner’s pro se 

petition for writ of habeas corpus under 28 U.S.C. § 2241 was referred to the United States 

magistrate judge for case management, including the issuance of findings and a recommended 

disposition where appropriate. As detailed herein, the petition should be summarily 

DISMISSED WITHOUT PREJUDICE due to improper venue.

On April 26, 2022, Abner filed a pro se petition for writ of habeas corpus under 28 

U.S.C. § 2254 challenging his 1992 Harris County conviction in cause number 610227 for 

aggravated sexual assault of a child. Doc. 3 at 2. He did not pay the $5 filing fee or submit a 

motion to proceed in forma pauperis. A review of PACER confirms that Abner filed numerous 

successive habeas petitions challenging this conviction without first seeking authorization from 

the Fifth Circuit Court of Appeals. See Abner v. Lumpkin, No. 4:22-CV-1033 (S.D. Tex., 

Houston Div., Apr. 13, 2022) (summarizing prior petitions). As a result of his repeated filings, 

the United States District Court for the Southern District of Texas recently warned him that 

“further successive habeas petitions without authorization from the Fifth Circuit Court of 

Appeals will subject him to the imposition of monetary or other sanctions against him.” Id.

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28 U.S.C. § 2241(d) provides that a habeas corpus action may be filed in either the 

district court for the district where the petitioner is in custody, or in the district court for the 

district within which the petitioner was convicted and sentenced. See Wadsworth v. Johnson, 

235 F.3d 959, 961 (5th Cir. 2000) (citing Story v. Collins, 920 F.2d 1247, 1250-51 (5th Cir. 

1991)). Here, Abner was convicted and sentenced in Harris County, which is located within the 

boundaries of the United States District Court for the Southern District of Texas, Houston

Division. See 28 U.S.C. § 124(b)(2). He is currently incarcerated at the Telford Unit, in New 

Boston, Texas (Bowie County), which lies within the boundaries of the United States District 

Court for the Eastern District of Texas, Texarkana Division. See 28 U.S.C. § 124(c)(5). As 

such, venue is not proper in the Northern District of Texas.

When venue is not proper, a district court has the authority to dismiss the case or transfer 

it in the interest of justice to any district or division in which the action could have been brought. 

28 U.S.C. § 1406(a) (“The district court of a district in which is filed a case laying venue in the 

wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to 

any district or division in which it could have been brought.”). See Caldwell v. Palmetto State 

Savings Bank of South Carolina, 811 F.2d 916, 919 (5th Cir. 1987) (concluding the district court 

has broad discretion in determining whether to dismiss or transfer a case in the interest of 

justice). Here, it appears Abner filed the petition sub judice as an attempted end-run around the 

April 13, 2022 sanction warning issued by the U.S. District Court for the Southern District of 

Texas. Doc. 3 at 10 (reflecting his petition was signed on April 20, 2022, one week after the 

April 13, 2022 sanction warning). Given Abner’s penchant for filing successive habeas 

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petitions, the Court should apply its broad discretion to dismiss his successive petition without 

prejudice to it being filed in the proper district. 

Accordingly, it is recommended that this habeas corpus action be DISMISSED 

WITHOUT PREJUDICE due to improper venue. See 28 U.S.C. § 1406(a). 

SO RECOMMENDED on April 28, 2022.

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner 

provided by law. Any party who objects to any part of this report and recommendation must file 

specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 

636(b)(1); FED. R. CIV. P. 72(b). An objection must identify the finding or recommendation to 

which objection is made, the basis for the objection, and the place in the magistrate judge’s report 

and recommendation the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except 

upon grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 

1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the 

time to file objections to 14 days). 

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