United States District Court, N.D. Texas, Dallas Division
MOHAMMAD SALAUDDIN SARKER (TDCJ No. 2155705; A No. 205459295) Petitioner,
BRYAN COLLIER, ET AL., Respondents.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
Mohammad Salauddin Sarker, in custody at the Montgomery
Processing Center, an ICE facility, filed a pro se
petition under 28 U.S.C. § 2254 for a writ of habeas
corpus, challenging a 2017 conviction in Erath County, Texas
for evading arrest or detention with a motor vehicle.
See Dkt. Nos. 3 & 4. This resulting action has
been referred to the undersigned United States magistrate
judge for pretrial management under 28 U.S.C. § 636(b)
and a standing order of reference from United States District
Judge David C. Godbey. The undersigned enters these findings
of fact, conclusions of law, and recommendation that the
Court should transfer this case sua sponte
to the Fort Worth Division of this district.
Background, Legal Standards, and Analysis
it is not clear from the petition filed whether the state
criminal judgment Sarker now challenges has been completely
discharged, if it has - and if this petition challenging that
conviction was filed as it could be related to an attempt to
deport Sarker - “deportation is a collateral
consequence that does not render a person ‘in
custody' for federal habeas purposes. The fact that
petitioner [may be] deported as a result of [a state]
conviction is not a sufficient restriction on his liberty to
meet the ‘in custody' requirement of §
2254(a).” Campos-Conrrada v. Thaler, No.
3:12-cv-4190-N-BH, 2012 WL 5845549, at *2 (N.D. Tex. Oct. 23,
2012) (citing United States v. Castro, 26 F.3d 557,
559 n.3, 561 n.8 (5th Cir. 1994); footnote omitted), rec.
accepted, 2012 WL 5844190 (N.D. Tex. Nov. 19, 2012).
assuming that Sarker's state criminal judgment has not
been completely discharged, “[w]here 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
application may be filed in the district court for the
district wherein such person is in custody or in the district
court for the district within which the State court was held
which convicted and sentenced him and each of such district
courts shall have concurrent jurisdiction to entertain the
application.” 28 U.S.C. § 2241(d); see also Ex
parte Green, 39 F.3d 582, 583-84 (5th Cir. 1994). These
filing requirements are jurisdictional. See Carmona v.
Andrews, 357 F.3d 535, 537 (5th Cir. 2004); Webb v.
Beto, 362 F.2d 105, 108 (5th Cir. 1966).
district court wherein such an application is filed may, in
the exercise of its discretion and in furtherance of justice,
transfer the case to another district court for hearing and
determination. See 28 U.S.C. § 2241(d); see
also Carmona, 375 F.3d at 539 (affirming dismissal of
Section 2254 application for lack of jurisdiction but
remanding with instructions to transfer the matter to either
the district of conviction or the district of incarceration
if petitioner elects to pursue his claim in either forum);
cf. 28 U.S.C. § 1631 (allowing a district court
lacking jurisdiction over an action to transfer that action
if in the interest of justice to a federal court in which the
action could have been brought at the time it was filed or
sentence at issue in this proceeding results from a
conviction out of Erath County, which lies within the Fort
Worth Division of this district, see Id. §
124(a)(2), and because Sarker is currently in custody at a
facility in Conroe, Texas, in Montgomery County, which lies
within the Houston Division of the Southern District of
Texas, see Id. § 124(b)(2), this matter does
not belong in the Dallas Division of this district.
this Court has jurisdiction over the Section 2254
application, it should be transferred, under Section 2241(d),
to the Fort Worth Division of this district, the district in
which the state court that convicted and sentenced Sarker is
located. See Henderson v. Quarterman, No.
3:07-cv-248-B, 2007 WL 1411558 (N.D. Tex. May 11, 2007)
(citing 28 U.S.C. § 1404 to note that, “[f]or the
convenience of the parties and witnesses and in the interest
of justice, a district court may transfer a civil action to
any district or division where it might have been
brought” and further remarking that, “[i]f there
is any possibility that an evidentiary hearing may be
necessary, a district court should transfer a petition to the
district or division in which the petitioner was convicted
and sentenced, ” and citing Laue v. Nelson,
279 F.Supp. 265, 266 (N.D. Cal. 1968) (“The legislative
history of [Section 2241(d)] makes clear that a district
court should transfer a petition to the district in which
petitioner was convicted and sentenced if the transferring
court is of the view that an evidentiary hearing will be
necessary before final determination can be had.”)).
Court should transfer this action to the Fort Worth Division
of the Northern District of Texas.
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 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 ...