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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CARLOS SHAARBAY,

Petitioner,

vs. Case No. 4:11cv211-SPM/WCS

STATE OF FLORIDA,

Respondent.

 /

REPORT AND RECOMMENDATION

This cause is before me on referral from the clerk. 

A package of documents was sent to this court from the Eleventh Circuit. There

was no cover letter or any other indication as to why it was sent to this court. Included

were Petitioner Shaarbay's motion for leave to proceed in forma pauperis on appeal

(receive-stamped by the Eleventh Circuit Clerk on April 29, 2011), an application for

leave to file a second or successive petition pursuant to 28 U.S.C. § 2254, and many

exhibits. A civil case number was assigned, and the documents were filed as a motion

to proceed in forma pauperis and a 28 U.S.C. § 2254 petition with exhibits. Docs. 2 and

1, respectively. 

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Petitioner then filed (directly in this court) a consent form and financial certificate,

motion for counsel, motion for relief on bond, and supporting brief. Docs. 4-7. 

Research reveals that Petitioner already filed an application for leave to file a

second or successive § 2254 petition in the Eleventh Circuit, and it was denied as

unnecessary because Petitioner did not previously file a § 2254 petition. Case No. 11-

10783-D, order filed March 15, 2011 (available in PACER) (Public Access to Electronic

Records). The application to file a second or successive petition forwarded to this court

was signed by Petitioner on April 26, 2011, presumably after Petitioner received the

order of March 15, 2011. 

Since authorization is not necessary a§ 2254 petition may be filed by Petitioner,

but he has not submitted a proper § 2254 petition. His documents are on forms for filing

with the court of appeals. Construing the documents as § 2254 pleadings, they should

be transferred to the proper court. As Petitioner is incarcerated at Union Correctional

Institution and challenges a judgment out of Broward County, jurisdiction is appropriate

in the Middle and Southern Districts of Florida. 28 U.S.C. § 2241(d) (the districts of

confinement and conviction have concurrent jurisdiction). The district of conviction

appears to be the most convenient and appropriate venue, so this cause should be

transferred to the Southern District of Florida for all further proceedings. § 2241(d). 

See also, Parker v. Singletary, 974 F.2d 1562, 1582 and nn. 114 and 118 (11th Cir.

1992) (finding transfer "in furtherance of justice" under § 2241(d), citations omitted);

Eagle v. Linahan, 279 F.3d 926, 933, n. 9 (11th Cir. 2001) (noting the practice of district

courts in Georgia to transfer petitions to the district of conviction under § 2241(d)). 

Case No. 4:11cv211-SPM/WCS

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It is therefore respectfully RECOMMENDED that this case be TRANSFERRED to

the Southern District of Florida for all further proceedings, and that the clerk be directed

to TERMINATE all motions (docs. 2, 5 and 6). 

IN CHAMBERS at Tallahassee, Florida, on August 1, 2011. 

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

Case No. 4:11cv211-SPM/WCS

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