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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50428
JOHN LOUIS BRINAR,
Petitioner-Appellant,
versus
TROY WILLIAMSON, Warden-Federal
Correctional Institute La Tuna,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
April 4, 2001
Before POLITZ, DeMOSS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Petitioner John Luis Brinar ("Brinar") contends that the district court erred by construing his
federal habeas petition, filed pursuant to 28 U.S.C. § 2241, as a motion to vacate, set aside, or correct
judgment under § 2255 and by transferring the case to the Ninth Circuit Court of Appeals. For the
reasons assigned below, we hold that this court lacks jurisdiction to hear Brinar's claims and therefore
dismiss his appeal.
FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Brinar was convicted in the United States District Court for the District of Nevada
after pleading guilty to possession of a machine gun in violation of 18 U.S.C. § 922 (o) and to
unlawful transfer of a firearm in violation of 26 U.S.C. § 5861(e). He received two concurrent
sentences of 41 months' imprisonment. Brinar did not directly appeal his convictions and sentences
but filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence, which the District of
Nevada denied.
Upon transfer to a federal correctional center in Texas, Brinar filed a motion in the Western
District of Texas, El Paso Division, for federal writ of habeas corpus pursuant to § 2241. The district
court granted summary judgment in favor of the respondent. Nevertheless, Brinar filed another
application for a federal writ of habeas corpus under § 2241, which the district court construed as a
second motion to vacate, set aside, or correct sentence pursuant to § 2255. See Tolliver v. Dobre,
211 F.3d 876, 877-78 (5th Cir. 2000) (stating that the district court should construe a petition filed
under § 2241 that challenges trial or sentencing errors as a motion arising under § 2255).
Recognizing that the only court with jurisdiction to hear Brinar's claim was the court in which he was
sentenced, see Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997), the district court transferred his case
to the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631 to determine whether Brinar was
entitled to file a second § 2255 motion in the District of Nevada. Brinar now appeals.
The instant § 1631 transfer order is interlocutory. Thus, for this court to have jurisdiction
over Brinar's appeal, the district court's transfer order must fall within the collateral order doctrine.
See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225, 93 L. Ed 1528
(1949). "The collateral order doctrine establishes that certain decisions of the district court are final
in effect although they do not dispose of the litigation." Davis v. East Baton Rouge Parish Sch. Bd.,
2

78 F.3d 920, 925 (5th Cir. 1996). Under the doctrine, an order is appealable, notwithstanding the
absence of a final judgment, if it is conclusive, resolves important questions that are separate from
the merits, and is effectively unreviewable on appeal from final judgment. EEOC v. Exon Corp., 202
F.3d 755, 757 (5th Cir. 2000).
No Fifth Circuit authority squarely addresses the issue of whether the district court's § 1631
transfer order is appealable in this court under the col lateral order doctrine, but Persyn v. United
States, 935 F.2d 69 (5th Cir. 1991), provides preliminary guidance. In Persyn, a district court
concluded that it lacked subject matter jurisdiction over the action and transferred the case to the
United States Claims Court ("Claims Court"). Id. at 72. The appellants sought review of the transfer
order. Id. Reasoning that the Claims Court would either dismiss the case or dispose of it on the
merits, aft er considering the jurisdictional issue, and that the ensuing final decision would be
reviewable by the Federal Circuit, this court concluded that the transfer order at issue in Persyn was
"not effectively unreviewable." Id. at 73. Acco rdingly, this court held that the case did not fall
within the narrow class of cases reviewable under the collateral doctrine order. Id.1
Middlebrooks v. Smith, 735 F.2d 431 (11th Cir. 1984), applied the familiar intellection of
Persyn and other relevant cases in the context of a habeas corpus petition. Kimbrough Middlebrooks
("Middlebrooks") filed a habeas corpus petition pursuant to 28 U.S.C.§§ 2241 and 2243 in the United
1 This holding conforms with several of our sister circuits. See, e.g., FDIC v. McGlamery,
74 F.3d 218, 221(10th Cir. 1996) (finding that "courts have almost universally agreed that transfer
orders fall outside the scope of the collateral order exception"); Alimenta, Inc. v. Lyng, 872 F.2d 382,
384-85 (11th Cir. 1989) (reasoning that because "[t]he correctness of the transfer would be reviewable
upon a judgment from the Claims Court" and that "the petitioner would not be denied a day in court,"
the transfer order was not a final order over which the Eleventh Circuit had jurisdiction); Ukiah
Adventist Hosp. v. FTC, 981 F.2d 543, 546 (D.C. Cir. 1992) ("As a general principle, it is well
settled that transfer orders are not appealable final orders.").
3

States District Court for the Middle District of Alabama. Id. at 432. The district court found that
the petition was more properly characterized as a petition to vacate a sentence under § 2255. Id.
Moreover it found that, because Middlebrooks had failed to bring the action in the court that
sentenced him, as required by § 2255, the action should be transferred under § 1631 to the Southern
District of Mississippi, the sentencing court. Id. Middlebrooks appealed to the Eleventh Circuit
Court of Appeals. Id.
Extending the reasoning of the former Fifth Circuit regarding transfers under §§ 1404(a) and
1406(a), the court stated that "[t]he effect of the transfer order . . . was not a final adjudication,
because the plaintiff was `still in the federal court although in a different room.'" Id. (quoting Stelly
v. Employers Nat'l Ins. Co., 431 F.2d 1251, 1254 (5th Cir. 1970)). The court reasoned that if
Middlebrooks's complaint was that the district court "improperly characterized his claim as falling
under § 2255 rather than §§ 2241 and 2243 as he alleged, he [would] be free to raise that point in the
transferee court . . . ." Id. at 432-33. Consequently, the court concluded that the § 1631 transfer
order did not fall within the collateral order doctrine. Id. at 433.
Although the Western District transferred Brinar's case to an appellate court rather than to
another district court because it determined that Brinar filed a successive petition, the ultimate issue
presented by the case at bar parallels that of Middlebrooks. As such, Middlebrooks articulates a
principled and persuasive approach to the inquiry of whether the Western District's transfer of
Brinar's habeas petition to the Ninth Circuit is an appealable interlocutory order over which this court
may properly exercise jurisdiction under the collateral order doctrine. As did the Middlebrooks court,
we hold that a transfer order under § 1631 is not such an appealable interlocutory order.
CONCLUSION
4