IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30119
USDC No. 00-CV-2676
IN RE: WILSON F. MARTIN,
Movant.
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Motion for an order transferring
prisoner’s 28 U.S.C. § 2241 habeas corpus application
to the Western District of Louisiana
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April 4, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Wilson F. Martin, federal prisoner # 22268-034, filed, in
the district court, a habeas corpus application pursuant to 28
U.S.C. § 2241. The case was assigned to a magistrate judge who
determined that 28 U.S.C. § 2241 was an inappropriate vehicle for
the relief requested by Martin, but rather that his claims fell
under the ambit of 28 U.S.C. § 2255. Because Martin had
previously filed a 28 U.S.C. § 2255 claim which had been resolved
on the merits, the magistrate judge entered an order transferring
the case to this court so that Martin could request permission,
pursuant to 28 U.S.C. § 2244, to file a successive application
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-30119
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under 28 U.S.C. § 2255. We note that the magistrate judge’s
decision to so treat the petition and to transfer the case was
not presented to the district court judge as a recommendation,
and thus was not adopted by the district court as its decision.
Martin has filed in this court an “objection” to the
magistrate judge’s order construing his 28 U.S.C. § 2241 habeas
corpus application as a successive 28 U.S.C. § 2255 motion and
transferring the application to this court. Martin asserts that
the magistrate judge erred in finding that Martin failed to
demonstrate that 28 U.S.C. § 2255 was an inadequate and
ineffective remedy to test the legality of his detention. He
requests that his case be transferred back to the district court
for a determination on the merits.
This court must examine the basis of its jurisdiction on its
own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). Martin does not seek authorization pursuant to 28
U.S.C. § 2244(d) to file a successive 28 U.S.C. § 2255 motion.
Rather, he seeks to invoke this court’s appellate jurisdiction to
review the magistrate judge’s conclusions regarding his 28 U.S.C.
§ 2241 application.
The exercise of our appellate jurisdiction at this stage is
problematic. It is questionable whether the magistrate judge had
the authority to issue a final order of transfer effectively
disposing of Martin’s 28 U.S.C. § 2241 action without approval by
the district court and, consequently, whether Martin may appeal
directly to this court from the magistrate judge’s transfer
order. See 28 U.S.C. §§ 636(b)(1), (c)(1), & (c)(3); Trufant v.
No. 01-30119
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Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984)(“It is well
established that the findings of a magistrate may not ordinarily
be appealed directly to the Court of Appeals.”). Even if we were
to assume that the magistrate judge’s transfer order is an
appealable order, Martin has not filed a notice of appeal, a
mandatory precondition to the exercise of this court’s appellate
jurisdiction. See Fed. R. App. P. 4(a); United States v.
Merrifield, 764 F.2d 436, 437 (5th Cir. 1985).
We need not resolve, at this stage, the question whether we
have jurisdiction to review the magistrate judge’s findings
regarding Martin’s 28 U.S.C. § 2241 application. Martin has
requested the transfer of his action back to the district court.
Based on the foregoing, Martin’s request for transfer to the
district court is GRANTED. In transferring this matter back to
district court, this court makes no determination regarding the
magistrate judge’s prior finding that Martin’s 28 U.S.C. § 2241
application must be construed as a 28 U.S.C. § 2255 motion and
makes no instruction as to how the application should be
construed.
Martin has also filed a 28 U.S.C. § 2241 habeas corpus
application in this court that is nearly identical to the
application he filed in the district. We lack original
jurisdiction to entertain his application. Zimmerman v. Spears,
565 F.2d 310, 316 (5th Cir. 1977). To the extent that Martin may
submit an application to a circuit judge, his “application must
be transferred to the appropriate district court.” Fed. R. App.
P. 22(a).
No. 01-30119
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MOTION TO TRANSFER GRANTED; 28 U.S.C. § 2241 APPLICATION
FILED IN THIS COURT TRANSFERRED TO DISTRICT COURT PURSUANT TO
RULE 22(a).