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Burton v. Armstrong

United States District Court, Eastern District of Michigan, Southern Division

March 3, 2015

BOBBY E. BURTON, Jr., Petitioner
v.
BRUCE ARMSTRONG, Respondent,

OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

SEAN F. COX U.S. DISTRICT JUDGE

Bobby Burton, Jr., (“petitioner”), presently confined with the Texas Department of Criminal Justice, Correctional Institution Division at the Alfred Hughes Unit in Gatesville, Texas has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges an unspecified conviction out of the “T.D.C.

Courthouse.” For the reasons that follow, the petition for writ of habeas corpus is

SUMMARILY DISMISSED WITHOUT PREJUDICE.

I. DISCUSSION

Petitioner does not specify in his habeas petition what conviction he is challenging in his petition, other than to state that it is from the “T.D.C. Courthouse.” The Texas Department of Criminal Justice’s Offender Search, located at http://offender.tdcj.state.tx.us/OffenderSearch/, indicates that petitioner is serving a sentence out of Harris County, Texas for aggravated robbery, aggravated perjury and criminal mischief. Petitioner is serving a separate sentence out of Fort Bend County, Texas for murder. This Court has also checked the Michigan Department of Corrections’ Offender Tracking Information System (OTIS), located at http://mdocweb.state.mi.us/otis2, and there is no indication that petitioner was ever convicted of any crime in Michigan or is serving a sentence in this state.[1] The Court assumes that petitioner is attempting to challenge one of his convictions out of Texas.

A federal district court lacks jurisdiction to hear a state prisoner’s habeas petition, where the petitioner was not convicted, sentenced, or incarcerated within that district. See Wadsworth v. Johnson, 235 F.3d 959, 962-63 (5th Cir. 2000). Because petitioner is currently incarcerated in the State of Texas and is challenging one of his convictions out of Texas, this Court lacks jurisdiction over his petition. See Rheuark v. Wade, 608 F.2d 304, 305 (8th Cir. 1979). Accordingly, the Court will dismiss the petition for writ of habeas corpus without prejudice to petitioner filing a petition for writ of habeas corpus in the appropriate federal district court in Texas.

The Court will also deny a certificate of appealability. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claims, a certificate of appealability should issue, and an appeal of the district court’s order may be taken, if the petitioner shows that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id. [2]

The Court declines to issue a certificate of appealability, because “jurists of reason” would not find it debatable that this Court lacks jurisdiction over petitioner’s habeas application. The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Myers v. Straub, 159 F.Supp.2d 621, 629 (E.D. Mich. 2001).

II. ORDER

Accordingly, the Court SUMMARILY DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas corpus.

IT IS FURTHER ORDERED that the Court DECLINES TO ISSUE a certificate of appealability or leave to proceed in forma pauperis on appeal.

SO ORDERED.


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