In Re: Martin

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 4, 2001
• Docket: 01-30119
• Status: Unpublished

Opinion

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.

-------------------- Motion for an order transferring prisoner’s 28 U.S.C. § 2241 habeas corpus application to the Western District of Louisiana --------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 - 2 -

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 - 3 -

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 - 4 -

MOTION TO TRANSFER GRANTED; 28 U.S.C. § 2241 APPLICATION

FILED IN THIS COURT TRANSFERRED TO DISTRICT COURT PURSUANT TO

RULE 22(a).