Carmona v. Andrews

United States Court of Appeals
Fifth Circuit
F I L E D
January 29, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-30479
_______________
JESUS CARMONA,
Petitioner-Appellant,
VERSUS
O. KENT ANDREWS,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 02-CV-558
________________________
Before JONES, MAGILL,* and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jesus Carmona challenges the dismissal, for
want of jurisdiction, of his petition for writ of
habeas corpus. Concluding that there is no
jurisdiction in the district a quo, we affirm and
remand, so that Carmona may elect to transfer
his action to another district.
I.
In 1984, in a state court located in the East-
ern District of Louisiana, Carmona was con-
victed of armed robbery and received a twen-
ty-five-year sentence. In 1996, he was re-
leased on parole via good-time credits. In
* Judge of the United States Court of Appeals
for the Eighth Circuit, sitting by designation.

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2
2000, the Louisiana Board of Parole revoked
Carmona’s parole. While imprisoned in the
Western District of Louisiana, Carmona filed,
in the Eastern District, a federal habeas chal-
lenge pursuant to 28 U.S.C. § 2254 naming, as
respondent, the warden of the prison in which
he was confined.
A judge of the Eastern District determined
that venue for Carmona’s challenge properly
rested in the Middle District of Louisiana.
That judge looked to 28 U.S.C. § 2241(d)1
and decided that the Board of Parole had
“convicted” and “sentenced” Carmona.
Because t he Board is located in the Middle
District, the Eastern District judge referred the
matter to that district.
A judge of the Middle District then dis-
missed Carmona’s petition, without prejudice,
for failing to exhaust state remedies; Carmona
moved to vacate the dismissal. The Middle
District judge decided that that court did not
have jurisdiction because the Board of Parole
is not a “State court” as mentioned in § 2241.
Consequently, the matter was transferred to
the Eastern District, where a judge promptly
returned the matter to the Middle District,
afterSSonce againSSequating a parole board
with a state court, whereupon the judge in the
Middle District, pursuant to a magistrate
judge’s recommendation, dismissed the peti-
tion, without prejudice, based on Carmona’s
lack of subject matter jurisdiction.
Carmona promptly moved to vacate that
dismissal and appealed the denial of that mo-
tion. The Middle District judge granted a cer-
tificate of appealability (“COA”) on the issue
“of which court has jurisdiction when a peti-
tioner is reincarcerated for violation of parole
terms and is neither convicted nor incarcerated
in the judicial district where the revocation
occurred.” We now review the Middle Dis-
trict’s dismissal.
II.
The instant appeal focuses entirely on the
power of the Middle District to hear Carmo-
na’s § 2254 claim, so we do not address the
merits of the case. We review de novo a dis-
missal for lack of subject matter jurisdiction.
See, e.g., Williams v. Dallas Area Rapid Tran-
sit, 242 F.3d 315, 318 (5th Cir. 2001). Addi-
tionally, “‘The issue of subject matter jurisdic-
tion is subject to plenary review by an appel-
late court.’” Lincoln v. Case, 340 F.3d 283,
287 (5th Cir. 2003) (quoting Julian v. City of
Houston, 314 F.3d 721, 725 (5th Cir. 2002)).
Determining whether the Middle District can
entertain Carmona’s appeal turns on (1) the in-
teraction between §§ 2254 and 2241 and
(2) whether the Board of Parole operates as a
state court.
A.
Section 2254 “confers jurisdiction upon the
federal courts to hear collateral attacks on
state court judgments.” Wadsworth v. John-
son, 235 F.3d 959, 961 (5th Cir. 2000).2 “Sec
1 28 U.S.C. § 2241(d) states:
Where 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 . . . .
2 See 28 U.S.C. § 2254(a) (stating that federal
courts “shall entertain an application for a writ of
habeas corpus [from one] in custody pursuant to
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tion 2241 ‘specifies the court in which [the pe-
tition] must be brought.’” Id. (quoting Story
v. Collins, 920 F.2d 1247, 1250 (5th Cir.
1991)). See 28 U.S.C. § 2241(a) (stating that
federal courts may issue writs of habeas cor-
pus “within their respective jurisdictions”).
The “respective jurisdictions” language pre-
sumably limits the general habeas power con-
tained in § 2254.
Although the Supreme Court has discussed
subject matter jurisdiction in § 2254 challeng-
es, such a discussion does not apply to the
case at hand. In ruling that a district court
could hear a habeas challenge from a person
imprisoned in another state, the Court opined
that “[s]o long as the custodian can be reached
by service of process, the court can issue a
writ ‘within its jurisdiction’ . . . even if the pri-
soner himself is confined outside the court’s
territorial jurisdiction.” Braden v. 30th Judi-
cial Cir. Ct., 410 U.S. 484, 495 (1973) (quot-
ing § 2241(a)).
In Wadsworth, 235 F.3d at 962, we rejected
the notion that “a district court needs only the
capacity to serve process on the custodian in
order to assert jurisdiction.” Two of Wads-
worth’s justifications for this conclusion apply
to Carmona’s situation. First, “Braden pre-
sented the Supreme Court with a situation that
none of the more specific subsections of
§ 2241 addressed.” Id. at 962-63. In Braden,
the Court was presented with a question of in-
terstate detainerSSan issue that § 2241 does
not cover. Carmona, like Wadsworth, “is a
prisoner pursuant to a state court judgment
and sentence. He is currently confined within
that state, which has more than one federal
judicial district.” Id. at 963.3
Secondly, as the Wadsworth panel noted,
reading Braden as a broad grant of subject
matter jurisdiction would run against a
common doctrine of statutory construction.
“This broad reading of § 2241(a) would trump
the more specific § 2241(d). Thus, § 2241(d)
would be unnecessary.” Wadsworth, 235 F.3d
at 963. Numerous panels of this court have
articulated the canon of construction that
states that a more specific provision controls a
more general provision.4
Accordingly, as Wadsworth noted, Braden
does not invalidate the statutory regime
established by §§ 2254 and 2241. Though a
petitioner may have a broad right to file a
habeas petition, he may do so only in a limited
number of courts. Carmona falls perfectly
within the circumstances mentioned in §
2241(d). Thus, the language of that section
determines the appropriate district(s) in which
Carmona may file his petition.
B.
Section 2241(d) lists two districts in which
2(...continued)
the judgment of a State court only on the ground
that he is in custody in violation of the Constitution
or laws and treaties of the United States.”).
3 See also Mayfield v. Klevenhagen, 941 F.2d
346, 348 (5th Cir. 1991) (rejecting claim that a
District of Columbia district court could hear a
federal habeas petition and stating the petitioner
“was tried and sentenced in Texas; he is confined
in Texas.”).
4 See, e.g., United States v. John, 309 F.3d 298,
302 n.5 (5th Cir. 2002) (“a principle of statutory
construction provides that a specific provision
takes precedence over a more general one.”); Kirby
Corp. v. Pena, 109 F.3d 258, 270 (5th Cir. 1997)
(“It is a well-known canon of statutory con-
struction that a specific statutory provision governs
the general.”).

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a habeas petitioner may file: “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.” The Eastern
District has asserted that the Board of Parole
constitutes a “State court” that “convicted and
sentenced” Carmona.
Both assumptions are misplaced. First,
within Louisiana, the Board of Parole does not
function as a state court. From an institutional
perspective, the legislature created the body,
and the governor appoints its members. LA.
R.S. 15:574.2(A)(1) (“A board of parole . . . is
hereby created in the Department of Public
Safety and Corrections. It shall consist of sev-
en members appointed by the governor.”).
One may easily contrast the method of
selection for the members of the Board of
Parole with the electoral process that produces
members of the Louisiana state judiciary. LA.
CONST. art. V, § 22(A) (“Except as otherwise
provided in this Section, all judges shall be
elected.”).
Additionally, this court has explicitly
looked to the underlying nature of a correc-
tional entity and has determined that such a
body is not a state court. Story v. Collins, 920
F.2d 1247, 1251 (5th Cir. 1991). In Story, the
panel stated that the Texas Department of
Corrections (“TDC”) “is not a state court.”
Id. The Louisiana Board of Parole is part of
the Department of Public Safety and
Corrections, a Louisiana entity analogous to
the TDC.5 Consequently, the Board is not a
state court for purposes of § 2241(d).6
Furthermore, the Board neither “convicted”
nor “sentenced” Carmona. It can only
implement policies as directed by the
legislature or the courts. The Orleans Criminal
District Court originally sentenced Carmona.
The Louisiana legislature passed the relevant
statutes that detailed the granting and
revocation of parole. LA. R.S. 15:571.13; LA.
R.S. 15:571.3. In revoking Carmona’s parole,
the Board of Parole only re-instituted the trial
court’s original sentence. Consequently, the
Board sentenced Carmona to nothing new, and
he received no new sentence, but merely lost
the good-time credits offered under LA. R.S.
15:571.3.7
5 Although this statement did not occur in the
context of a § 2241(d) analysis, the Wadsworth
panel applied such a statement to the consideration
of venue. Wadsworth, 235 F.3d at 962 (“Because
(continued...)
5(...continued)
the [TCD] is not a state court, its actions cannot be
the basis for jurisdiction under § 2241(d).”).
6 The Eastern District cited a Supreme Court
case and several of this court’s opinions to argue
that, for purposes of § 2241, a parole board should
be treated as a state court. The Eastern District’s
cases, however, relate not to the issue involved in
this matter, but to immunity under 42 U.S.C.
§ 1983.
7 Additionally, this court’s language does not
connect parole revocation with sentencing or with
conviction. Parole is “revoked.” See, e.g., Alexan-
der v. Cockrell, 294 F.3d 626, 630 (5th Cir. 2002)
(noting that “the State sought to revoke Alexan-
der’s parole”); Barnes v. Johnson, 184 F.3d 451,
453 (5th Cir. 1999) (stating that “the State of Tex-
as moved to revoke Barnes’s parole”). Parole
boards neither convict nor sentence. Panels that
have discussed parole boards and sentencing treat
the sentencing as an act separate from a board’s
consideration of a particular case. See, e.g., Jones
v. Jones, 163 F.3d 285, 292 (5th Cir. 1998) (de-
tailing the Board’s limited power to consider a case
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III.
In summary, because the Louisiana Board
of Parole does not act as a state court and ne-
ither sentences nor convicts, Carmona cannot
file a § 2254 petition in the Middle District of
Louisiana. Although § 2254 provides general
subject matter jurisdiction for habeas petitions,
§ 2241(d) gives Carmona two choices. He
may file in the Western District (the place of
his incarceration) or in the Eastern District
(the place of his original conviction and
sentence).
The judgment of dismissal is AFFIRMED,
and this matter is REMANDED with instruc-
tion to transfer this matter to the Western or
Eastern District of Louisiana if Carmona elects
to pursue his claim in either of those forums.
7(...continued)
until a life sentence was commuted to a more
definite duration).

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