Smith v. Director, TDCJ-CID

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION KENNETH WESLEY SMITH § VS. § CIVIL ACTION NO. 5:21cv87 DIRECTOR, TDCJ-CID § MEMORANDUM OPINION REGARDING TRANSFER Petitioner Kenneth Wesley Smith, an inmate confined in the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case. Discussion On December 12, 2012, in cause number 662481 before the 379th Judicial District Court in Grayson County, Texas, petitioner was convicted and sentenced to a term of twenty-five years’ imprisonment. Pursuant to 28 U.S.C. § 2241(d), a petitioner may bring his petition for writ of habeas corpus in the district court for the district wherein such person is in custody or in the district court for the district within which he was convicted. Section 2241(d) further provides that the district court in the exercise of its discretion may transfer the action to the other district in the furtherance of justice. Petitioner was convicted and sentenced in Grayson County which is located in the Sherman Division of the Eastern District of Texas. Thus, jurisdiction is proper in the Eastern District of Texas. However, this petition has been inadvertently filed in the Texarkana Division instead of the Sherman Division. While jurisdiction is proper in the Eastern District of Texas, the court has considered the circumstances and has determined that the interest of justice would best be served if this petition were transferred to the division in which the petitioner was convicted. Under 28 U.S.C. § 1404(a), for the convenience of parties and witnesses and in the interest of justice, a district court may transfer any civil action to any other district or division where it could have been brought. Such a transfer may be done sua sponte and is reviewable only for an abuse of discretion. Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir. 1989), Since petitioner complains of a conviction which occurred in the Sherman Division, all records and witnesses involving this action most likely will be located in the Sherman Division. Thus, the transfer of this action to such division would further justice. Therefore, it is the opinion of the undersigned that this petition should be transferred to the United States District Court for the Eastern District of Texas, Sherman Division. An Order of Transfer so providing shall be entered in accordance with this Memorandum Opinion. SIGNED this 7th day of July, 2021.

LAA Artin lV. KAdate CAROLINE M. CRAVEN UNITED STATES MAGISTRATE JUDGE