Revised March 8, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30266
_____________________
HENRY LEE, SR
Petitioner - Appellant
v.
MONICA WETZEL, Warden, Federal Prison Camp,
Pensacola, Florida
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
March 7, 2001
Before KING, Chief Judge, and ALDISERT* and BENAVIDES, Circuit
Judges.
KING, Chief Judge:
Petitioner appeals the district court’s denial of his
petition for writ of habeas corpus brought under 28 U.S.C.
§ 2241. Contrary to the approach taken by the district court, we
do not consider the merits of Petitioner’s § 2241 petition.
*
Circuit Judge for the Third Circuit, sitting by
designation.
Instead, we address the question whether the District Court for
the Eastern District of Louisiana had jurisdiction to decide the
merits of the petition. Specifically, we decide whether the
District Court for the Northern District of Florida, the district
in which Petitioner was incarcerated at the time he filed his
§ 2241 petition, properly transferred the petition to the Eastern
District of Louisiana, the district in which Petitioner was
originally sentenced. For the following reasons, we conclude
that the District Court for the Eastern District of Louisiana was
without jurisdiction to rule on Petitioner’s § 2241 petition.
Accordingly, the judgment of the district court is VACATED, and
the case is REMANDED with instructions to DISMISS without
prejudice for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 17, 1989, a jury convicted Petitioner Henry Lee,
Sr. in the District Court for the Eastern District of Louisiana
(the “Eastern District”) for using and carrying a firearm in
relation to a drug trafficking offense, in violation of 18 U.S.C.
§ 924.1 In 1992, Lee filed his first motion for relief under 28
U.S.C. § 2255. The Eastern District denied the motion, and this
court affirmed.
1
Lee was also convicted of conspiring to distribute
cocaine hydrocloride, in violation of 21 U.S.C. § 846, and for
possessing cocaine hydrocloride with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1).
2
In 1995, however, the Supreme Court decided Bailey v. United
States, which construed the term “use” in 18 U.S.C. § 924(c)(1)
to mean that the defendant “actively employed the firearm during
and in relation to the predicate crime.” 516 U.S. 137, 150
(1995). Approximately five months later, Lee filed his second
§ 2255 motion in the Eastern District, asserting that under
Bailey, he was innocent of the firearm charge. Because this
motion was successive and Lee had failed to obtain the requisite
certification from this court, the Eastern District denied the
motion without prejudice. See 28 U.S.C. § 2255 (2000) (requiring
certification by a panel of the appropriate court of appeals that
the successive motion is based on newly discovered evidence or a
new rule of constitutional law made retroactive by the Supreme
Court).
In 1997, Lee filed his first petition for habeas corpus
under 28 U.S.C. § 2241 in the Eastern District. This § 2241
petition was dismissed because, at the time of filing, Lee was
incarcerated in another district. Then, on May 18, 1998, this
court denied Lee’s request for certification to file a successive
§ 2255 motion to challenge the firearm conviction under Bailey.
This court determined that the successive motion did not meet the
requirements of § 2255 in that Lee failed to make a prima facie
showing that this § 2255 motion either contained newly discovered
evidence or was based upon a new rule of constitutional law made
retroactive by the Supreme Court. See 28 U.S.C. § 2255.
3
Finally, on October 28, 1998, Lee filed the present § 2241
petition for habeas corpus relief in the District Court for the
Northern District of Florida (the “Northern District”) where he
was incarcerated. Lee claims that he was erroneously found
guilty of a violation of 18 U.S.C. § 924(c), again basing this
claim on Bailey. The Government moved to dismiss the § 2241
petition, arguing that Lee was misusing the § 2241 petition and
that the appropriate avenue of relief was through § 2255.
The Northern District denied the Government’s motion to
dismiss, noting that while no court in the Eleventh Circuit has
decided the issue, other courts of appeals have concluded that a
§ 2241 petition is the appropriate vehicle for raising a
Bailey claim.2 After denying the Government’s motion, the
Northern District decided that to “advance the interest of
judicial economy,” the case should be transferred to the Eastern
District, the district of sentencing.
When the petition reached the Eastern District, the district
court considered the merits of the case and determined that Lee
had not shown that he was actually innocent of the firearm
conviction and, thus, was barred from seeking relief. Lee timely
appealed.
2
In fact, this court has also found that a Bailey claim
may be brought through a § 2241 petition. See Reyes-Requena v.
United States, No. CIV.A. 99-41254, 2001 WL 197931, at *11 (5th
Cir. Feb. 28, 2001) (“Thus, Reyes meets our stringent savings
clause test and is permitted to file his Bailey claim under
§ 2241 in the district court of his incarceration[.]”).
4
II. PROPRIETY OF THE TRANSFER
The Government does not challenge this appeal on
jurisdictional grounds; however, “we must always be sure of our
appellate jurisdiction and, if there is doubt, we must address
it, sua sponte if necessary.” United States v. Key, 205 F.3d
773, 774 (5th Cir. 2000) (internal quotations omitted) (quoting
Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999)).
Moreover, not only must we be confident of our own jurisdiction,
but we are required to ensure that the district court also had
jurisdiction to consider the merits. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 88-89 (1998); see also Solsona
v. Warden, 821 F.2d 1129, 1132 n.2 (5th Cir. 1987) (“[W]e raise
sua sponte the question of the district court’s jurisdiction.”).
As such, “[i]f the district court lacked jurisdiction, ‘[o]ur
jurisdiction extends not to the merits but merely for the purpose
of correcting the error of the lower court in entertaining the
suit.’” Key, 205 F.3d at 774 (second alteration in original)
(quoting N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5th
Cir. 1998)).
In accepting the transfer, the Eastern District noted that
the Northern District “exercised its discretion to transfer to
this court for determination of whether Lee is actually innocent
of the firearm conviction,” Lee v. Weztel, 49 F. Supp. 2d 875,
877 (E.D. La. 1999), and concluded that “the actual innocence
5
issue is best resolved in this court where Lee was tried and
sentenced, and the offices of the United States Attorney and the
Federal Public Defender who participated in the trial are
located.” Id.
We conclude that the Northern District did not have the
“discretion” to transfer Lee’s § 2241 petition from its district,
where Lee was incarcerated at the time of filing, to the Eastern
District. First, § 2241 confers upon federal courts the
authority to grant writs of habeas corpus “within their
respective jurisdictions.” 28 U.S.C. § 2241 (1994). While this
court has not addressed the issue in these precise circumstances,
we have firmly stated that the district of incarceration is the
only district that has jurisdiction to entertain a defendant’s
§ 2241 petition.3 See Hooker v. Sivley, 187 F.3d 680, 682 (5th
Cir. 1999) (“The district court likewise lacked jurisdiction to
entertain Hooker’s pleading as a § 2241 petition: Such a petition
3
While this court has held that “a section 2241 petition
that seeks to challenge the validity of a federal sentence must
be either dismissed or construed as a section 2255 motion,” Pack
v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000), we have also
observed that § 2255 “contains a ‘savings clause,’ which acts as
a limited exception to this general rule.” Id.; see also Kinder
v. Purdy, 222 F.3d 209, 212 (5th Cir. 2000), cert. denied, 121 S.
Ct. 894 (2001). A petition for habeas corpus filed under § 2241
“attacks the manner in which a sentence is carried out,” Pack,
218 F.3d at 451, and must be filed in the district with
jurisdiction over the prisoner or his custodian. See id.; see
also Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495
(1973). In contrast, a § 2255 petition, which contests the
validity of the sentence, must be filed in the sentencing court.
See Pack, 218 F.3d at 451.
6
must be filed in the district where the prisoner is incarcerated.
As Hooker is incarcerated in Talladega, Alabama, only the
district court for the Northern District of Alabama would have
jurisdiction to entertain his § 2241 petition.” (internal
citations omitted)); Story v. Collins, 920 F.2d 1247, 1251 (5th
Cir. 1991) (“If the petitioner is a federal prisoner, . . . the
district court still must have jurisdiction over the prisoner or
his custodian [to invoke the jurisdictional basis of § 2241].”).
Second, our conclusion today — that the district of
sentencing does not have jurisdiction to consider the merits of a
§ 2241 petition, unless the petitioner or his custodian is also
located there — is consistent with the history of § 2241 and
§ 2255. One of the purposes behind the 1948 enactment of § 2255
was “to minimize the difficulties encountered in habeas corpus
hearings by affording the same rights in another and more
convenient forum.” United States v. Hayman, 342 U.S. 205, 219
(1952). Before the enactment of § 2255, there was “a great
increase in the number of applications for habeas corpus filed in
the federal courts by state and federal prisoners.” Id. at 212.
Because a petition for habeas corpus must be filed in the
district of confinement, the practical problems arising from the
increase of petitions were exacerbated by the fact that “the few
District Courts in whose territorial jurisdiction major federal
penal institutions are located were required to handle an
inordinate number of habeas corpus actions[.]” Id. at 213-14.
7
Moreover, in many of these habeas corpus actions, the district of
incarceration was far from the scene of the crime, the homes of
the witnesses, and the sentencing court’s records. See id. at
214. To alleviate these burdens, Congress enacted 28 U.S.C.
§ 2255 “to meet practical difficulties that had arisen in
administering the habeas corpus jurisdiction of the federal
courts.” Id. at 219.
We note that if a district court had the “discretion” to
transfer a habeas corpus action to a more “convenient” forum,
before the enactment of § 2255, the above purpose for enacting
§ 2255 would have been rendered a nullity. Indeed, these
overburdened districts of confinement could have easily advanced
the “interest of judicial economy,” as the Northern District did
in the instant case, and transferred those burdensome habeas
corpus actions to the sentencing court. However, the history of
§ 2241 and § 2255 tells us that this was not an option before the
enactment of § 2255, and is not an option for district courts
today.
Furthermore, a grant of a writ of habeas corpus operates
against the restraining authority. See Braden v. 30th Judicial
Circuit Court, 410 U.S. 484, 494-95 (1973). Therefore, the court
issuing the writ of habeas corpus must have jurisdiction over the
petitioner or his custodian. See Malone v. Calderon, 165 F.3d
1234, 1237 (9th Cir. 1999). “Without such jurisdiction, the
8
court has no authority to direct the actions of the restraining
authority.” Id.
Finally, had Congress intended for district courts to have
the discretion to transfer a habeas corpus petition brought under
§ 2241 to the sentencing district, it could have provided for
such discretion as it did for states that hold more than one
judicial district. See 28 U.S.C. § 2241(d) (2000) (“Where an
application for a writ of habeas corpus is made by a person in
custody under the judgment and sentence of a State court of a
State which contains two or more Federal judicial districts, the
. . . district court for the district wherein such an application
is filed in the exercise of its discretion and in furtherance of
justice may transfer the application to the other district court
for hearing and determination.”).
Accordingly, we conclude that the Eastern District did not
have jurisdiction to entertain the merits of Lee’s § 2241
petition for habeas corpus. See Hooker, 187 F.3d at 682; see
also Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000)
(“In particular, a habeas petition filed pursuant to § 2241 must
be heard in the custodial court . . . , even if the § 2241
petition contests the legality of a sentence by falling under the
savings clause.”); Bell v. United States, 48 F.3d 1042, 1043 (8th
Cir. 1995) (“Bell could properly attack the execution of his
sentence in a 28 U.S.C. § 2241(a) petition. As the district
court recognized however, it lacked subject matter jurisdiction
9
to hear his petition because Bell was not incarcerated in the
Eastern District of Missouri.”); Norton v. United States, 119 F.
Supp. 2d 43, 45 (D. Mass. 2000) (“[E]ven when the petition
challenges the validity rather than the execution of his sentence
in a petition under section 2241, jurisdiction lies, not in the
sentencing court as per section 2255, but in the district court
that has jurisdiction over the custodian.”). As a result, Lee’s
§ 2241 petition for habeas corpus relief must be dismissed
without prejudice.4 Lee may file the petition in the appropriate
court if he desires.5
III. CONCLUSION
4
Our conclusion applies to both § 2241 petitions brought
to contest the manner in which a prisoner’s sentence is carried
out and § 2241 petitions brought to attack the validity of a
prisoner’s sentence. See supra note 3; see also Hernandez, 204
F.3d at 865; Norton, 119 F. Supp. 2d at 45.
5
We realize that since his notice of appeal to this court,
Lee has been transferred to a halfway house located in the
Eastern District. However, our holding today does not amount to
an empty formality because jurisdiction over Lee’s habeas corpus
petition attached at the time of filing when he was incarcerated
in another judicial district located outside the state of
Louisiana. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d
1250, 1253 (5th Cir. 1998) (“[J]urisdictional facts must be
judged as of the time the complaint is filed[.]”); see also
Santillanes v. U.S. Parole Comm’n, 754 F.2d 887, 888 (10th Cir.
1985) (“It is well established that jurisdiction attaches on the
initial filing for habeas corpus relief[.]”). Moreover, Lee was
still situated in Florida when he filed his notice of appeal.
Therefore, the fact remains that the Eastern District had neither
jurisdiction over Lee nor jurisdiction over his custodian at the
time the district court considered the merits of Lee’s § 2241
petition.
10
For the foregoing reasons, the judgment of the district
court is VACATED, and the case is REMANDED with instructions to
DISMISS without prejudice for lack of jurisdiction.
11