IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

§

§

V. § No. 3:04-cr-205-O (10)

§

WILLIAM GALLO, §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendant William Gallo (“Gallo”), a prisoner in the custody of the Federal

Bureau of Prisons (“BOP”) pursuant to a conviction in this Court, who is currently

incarcerated at BOP Beaumont FCI – Low, in Beaumont, Texas, has filed a motion in

his criminal case titled Petition for Second Chanse [sic] Consideration [Dkt. No. 865].

United States District Judge Reed O’Connor has referred the motion to the

undersigned United States magistrate judge. See Dkt. No. 866. The undersigned issues

the following findings of fact, conclusions of law, and recommendation that the Court

should construe Gallo’s motion as a 28 U.S.C. § 2241 application for a writ of habeas

corpus, open a new civil action, and transfer that civil action to the Beaumont Division

of the Eastern District of Texas, the district and division in which Gallo is incarcerated.

Legal Standards and Analysis

Gallo, through his motion, appears to be challenging his BOP release plan and

halfway house placement.

“Section 2241 is the proper procedural vehicle if a prisoner ‘challenges the

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execution of his sentence rather than the validity of his conviction and sentence.’”

Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012) (quoting United

States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992)). A prisoner’s challenge “to his

ineligibility for placement in a halfway house or other less restrictive confinement

designed to prepare a prisoner for reentry into society affect[s] the execution of his

sentence” and, thus, “may be raised under § 2241.” Cervante v. United States, 402 F.

App’x 886, 887 (5th Cir. 2010) (per curiam) (citing Rublee v. Fleming, 160 F.3d 213,

214-17 (5th Cir. 1998); Cleto, 956 F.2d at 84) (vacating district court’s dismissal, for

lack of subject matter jurisdiciton, of a habeas petition raising such a claim); see also

Ragsdale v. Caraway, No. Civ.05-1596(MJD/JJG), 2006 WL 44017, at *3-*4 (D. Minn.

Jan. 6, 2006) (“Common practice indicates that the issue of placement in a halfway

house is frequently heard under § 2241.” (collected cases omitted)).

Thus, the Court should liberally construe Gallo’s motion as a Section 2241

application for a writ of habeas corpus and, accordingly, open a new civil action. But,

as Gallo is not incarcerated in this District, the Court should transfer the new civil

action because a claim like Gallo’s “must be filed in the same district where the

prisoner is incarcerated.” Pack v. Yusff, 218 F.3d 448, 451 (5th Cir. 2000) (citations

omitted). This is because “[d]istrict courts are limited to granting habeas relief ‘within

their respective jurisdictions.’ 28 U.S.C. § 2241(a)” – language that the Supreme Court

has “interpreted ... to require ‘nothing more than that the court issuing the writ have

jurisdiction over the custodian.’” Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (quoting

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973)).

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The Court may transfer a case “filed” in the wrong district or division “to any

district or division in which it could have been brought.” 28 U.S.C. § 1406(a). A district

court may raise the issue of venue sua sponte. See Mills v. Beech Aircraft Corp., 886

F.2d 758, 761 (5th Cir. 1989). Gallo is incarcerated at a BOP facility in Beaumont,

Texas, which is in Jefferson County, within the Beaumont Division of the Eastern

District of Texas. See 28 U.S.C. § 124(c)(2). Accordingly, the new civil action should be

transferred to the Beaumont Division of the Eastern District of Texas for further

proceedings.

Recommendation

The Petition for Second Chanse [sic] Consideration [Dkt. No. 865] should be

construed as a 28 U.S.C. § 2241 application for a writ of habeas corpus. On that basis,

the Court should direct that the Clerk open a new civil action (NOS: 530) and transfer

that action to the Beaumont Division of the Eastern District of Texas, the district and

division in which Gallo is incarcerated.

A copy of these findings, conclusions, and recommendation shall be served on all

parties in the manner provided by law. Any party who objects to any part of these

findings, conclusions, 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).

In order to be specific, an objection must identify the specific finding or

recommendation to which objection is made, state the basis for the objection, and

specify the place in the magistrate judge’s findings, conclusions, and recommendation

where the disputed determination is found. An objection that merely incorporates by

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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 Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: November 6, 2015

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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