IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

THOMAS EARL SMITH §

VS. § CIVIL ACTION NO. 9:23-cv-121

DIRECTOR, TDCJ-CID §

MEMORANDUM OPINION REGARDING TRANSFER

Petitioner Thomas Earl Smith, an inmate confined at the Ellis Unit of the Texas Department

of Criminal Justice, Correctional Institutions Division, proceeding pro se, brings this Petition for

Writ of Mandamus. 

Discussion

Petitioner submitted this Petition for Writ of Mandamus challenging the execution of his

sentence. Petitioner seeks to be transferred to federal custody to start the service of a federal

conviction instead of first serving the sentence for his state conviction. Petitioner contends that state

officials’ failure to return him to the custody of the United States Marshal’s Service following his

conviction and sentencing in state court constitutes multiple constitutional violations under the

Fourth, Fifth, Eighth, andNinthAmendments. Interpreted liberally, Petitioner’s Petition is construed

as a Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2241.

Analysis

Title 28 U.S.C. § 2241(a) provides that “Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts and any circuit judge within their respective

jurisdictions.” “To entertain a § 2241 habeas petition, the district court must, upon the filing of the

petition, have jurisdiction over the prisoner or his custodian.” United States v. Gabor, 905 F.2d 76,

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78 (5th Cir. 1990). A § 2241 Petition must be filed in the district where the Petitioner is

incarcerated. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999). Thus, only the district court

where the Petitioner is confined at the time the Petition is filed has jurisdiction to entertain the

§ 2241 Petition. Id.

Petitioner was confined at the Ellis Unit located in Huntsville, Texas when he filed this

Petition, where he remains. The city of Huntsville is located in Walker County, Texas. Pursuant

to 28 U.S.C. § 124, Walker County, Texas is located within the jurisdictional boundaries of the

United States District Court for the Southern District of Texas, Houston Division. As Petitioner is

not incarcerated in the Eastern District of Texas, this court is without jurisdiction to consider

Petitioner’s Petition for Writ of Habeas Corpus, and subject-matter jurisdiction cannot be waived. 

See DeCell & Assocs. v. F.D.I.C., 36 F.3d 464, 471 (5th Cir. 1991). 

Under 28 U.S.C. § 1404(a), for the convenience of parties and witnesses and in the interest

of justice, a district court may transfer any civil action to any other district or division where it could

have been brought. Such a transfer may be done sua sponte and is reviewable only for an abuse of

discretion. Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir. 1989). 

After considering the circumstances, the court has determined that the interests of justice

would best be served if this Petition were transferred to the district in which the Petitioner is

confined rather than dismissed the case for lack of jurisdiction. An Order of Transfer so providing

shall be entered in accordance with this Memorandum Order.

_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 26th day of July, 2023.

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