Dobard v. Johnson

Decision Date08 January 1985
Docket NumberNo. 84-7281,84-7281
PartiesPercy Leo DOBARD, Petitioner-Appellant, v. W.E. JOHNSON, Warden, Holman Correctional Institution, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Ralph I. Knowles, Jr., Tuscaloosa, Ala., Barry Friedman, Davis, Polk & Wardwell, Washington, D.C., for petitioner-appellant.

Edward Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, CLARK, Circuit Judge, and THOMAS *, District Judge.

GODBOLD, Chief Judge:

Under 28 U.S.C. Sec. 2241 (1982) a state prisoner may file a petition for habeas corpus in the federal judicial district in which he is in custody or in the district in which the court was held that convicted and sentenced him. 1 The provision permitting filing in the district of conviction and sentence was added by amendment in 1966. 2

Petitioner is an Alabama death-sentenced prisoner who was convicted and sentenced to death for murdering a police officer. Because of pretrial publicity the venue for petitioner's trial was transferred from the state court in the county of indictment to the state court in an adjoining county, and petitioner was tried and convicted in the adjoining county. Some of the incidents of sentencing were, in the physical sense, done in one county, some in the other. The county of indictment is located in the federal Northern District of Alabama, the county of trial and conviction in the federal Southern District of Alabama. These facts raise two substantive questions: where could petitioner file a federal petition for habeas corpus under the provision of Sec. 2241(d) that permits filing in the federal district in which the prisoner was convicted and sentenced, and what could the court of filing do with the petition?

Petitioner is in state custody in the federal Southern District of Alabama. He filed his federal habeas petition in the Northern District. The district judge in the Northern District, uncertain whether his court had jurisdiction and venue as the district of conviction and sentence, declined to decide whether his court had jurisdiction to entertain the merits of the petition and instead transferred the case to the Southern District, where unquestionably the case could be entertained based upon place of custody.

Petitioner filed a notice of appeal, contending that the district court could not transfer the case without first determining whether it had jurisdiction to decide the merits. We hold that where substantial incidents of conviction and sentence are divided between two federal judicial districts, either district court is the court of conviction and sentence within the meaning of Sec. 2241(d) and has power to entertain the petition on its merits or transfer it.

In his opinion accompanying the transfer order District Judge Acker of the Northern District described the unusual procedural circumstances of petitioner's case. The murder for which Dobard was convicted and sentenced to death occurred in Sumter County, located in the Northern District. Dobard was indicted in the Circuit Court of Sumter County, and numerous pretrial motions were filed and heard in that court. Because of pretrial publicity, the state circuit judge, ruling from the bench in Sumter County, transferred the trial of the case to the Circuit Court of Marengo County, located in the Southern District. 3

All files pertaining to the case were sent to the Circuit Court of Marengo County. Various pretrial motions were heard in Sumter County, but counsel have stipulated that after the transfer of the case all orders were entered by the Circuit Court of Marengo County. After the trial and conviction in Marengo County the sentencing hearing required by Alabama law to be held before the judge was heard in Sumter County and petitioner was there orally sentenced to death. The judge signed the sentencing order while in Marengo. Dobard's motion for a new trial was received by the circuit clerk in Sumter and then sent on to be filed in Marengo. The hearing on the new trial motion was conducted in Sumter.

Under these peculiar circumstances the district judge was faced with the question whether the Northern District or the Southern District was the district where Dobard was convicted and sentenced within the meaning of Sec. 2241, or whether both districts might be treated as the district of conviction and sentence, or whether neither district could be.

Judge Acker recognized the potential problem presented by these unusual facts and voiced his concerns. He held:

While this case presents interesting questions concerning jurisdiction and venue, and tempts the Court to opine on its jurisdiction under this peculiar set of circumstances, no purpose would be served if this cause were allowed to proceed in this Court. Such a decision undoubtedly would be subjected to appellate review and the delay which would accompany that process. What both petitioner and respondent want and deserve is a speedy, federal hearing and decision on the merits. This Court finds that it has jurisdiction over this petition at least for the limited purpose of transfer and that the Southern District certainly has both jurisdiction and venue to hear the merits of the case. This Court will transfer this petition to the United States District Court for the Southern District of Alabama.

The transfer order was entered. The case was assigned to Judge Cox of the Southern District. He entered an order noting his agreement with Judge Acker's view that the transfer order was not appealable. He stated his intention to proceed with adjudication of the habeas petition, and the petition is now being litigated in due course in the Southern District.

We hold that this court has no jurisdiction to entertain an appeal from Judge Acker's transfer order. Although apparently no court has expressly ruled on whether transfer orders under Sec. 2241 are final, courts have fairly consistently held that transfer orders brought under other statutes are not generally final orders for the purpose of appeal. In Stelly v. Employers National Insurance Co., 431 F.2d 1251, 1253-54 (5th Cir.1970), cert. denied sub nom. Stelly v. Bauer Dredging Co., 401 U.S. 908, 91 S.Ct. 866, 27 L.Ed.2d 806 (1971), we held that a case transferred under 28 U.S.C. Sec. 1404(a) (1982) 4 is interlocutory. See also Matter of Macon Uplands Venture, 624 F.2d 26, 26-27 (5th Cir.1980). The Third Circuit has recently ruled that these forum non conveniens orders do not fall within the exception articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). 5 In Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 195 (3d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983), the Third Circuit held that transfer orders are not easily separable from the merits of the litigation and do not meet the requirement that the order be effectively unreviewable on appeal. We agree.

Moreover, we recently held that transfer orders under 28 U.S.C. Sec. 1631 (1982) 6 are also not final orders and do not fall within the collateral order doctrine of Cohen. See Middlebrooks v. Smith, 735 F.2d 431, 433 (11th Cir.1984). Relying upon our reasoning in Stelly, supra, we held that cases transferred for lack of jurisdiction under Sec. 1631 are as nonappealable and interlocutory as those transferred under Sec. 1404 for lack of venue. 7

If, therefore, in the instant case the district court had decided that jurisdiction under Sec. 2241(d) was not present in the Northern District, the court could have transferred the case to the Southern District under Sec. 1631. That transfer order would not have been appealable. Moreover, even if the district court had determined that jurisdiction and venue were present in the Northern District and had transferred the case pursuant to Sec. 2241(d), the court's order would still not be a final order reviewable by this court. Such a transfer is one between two courts with concurrent jurisdiction and is essentially a forum non conveniens determination akin to that made pursuant to 28 U.S.C. Sec. 1404(a) (1982). See McClure v. Hopper, 577 F.2d 938, 940 (5th Cir.1978), cert. denied sub nom. McClure v. Balkcom, 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979); Dillworth v. Barker, 465 F.2d 1338, 1341 (5th Cir.1972); Reed v. Henderson, 463 F.2d 485, 487 (5th Cir.1972). Transfer orders based on forum non conveniens determinations, whether brought pursuant to Sec. 1404 or Sec. 2241, are nonreviewable interlocutory orders.

Petitioner seeks, however, to identify finality through another approach. He contends that the refusal of the district court to decide whether it had jurisdiction to determine the merits is within the doctrine of pragmatic or practical finality. See, e.g., Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199, 203 (1964). This effort will not work. Central to this contention is petitioner's argument that the refusal to decide the jurisdiction issue deprived him of the forum of his choice. The contention assumes that petitioner was entitled to a ruling on whether the Northern District was a forum that he could choose. In our holding, infra, we agree that the Northern District was one of the available forums of choice. The district court, however, eschewed reaching the unique issue of plenary jurisdiction raised by the facts and instead exercised a more limited power to transfer the case. The court recognized the quicksand into which it would fall if it decided the issue of plenary jurisdiction. No matter how it ruled, the jurisdiction issue would remain alive in any appeal. If it found that it had jurisdiction, retained the case and denied the writ, petitioner could urge on appeal that the district court had no...

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