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United States Court of Appeals
Fifth Circuit
F I L E D
January 29, 2004
In the
Charles R. Fulbruge III
United States Court of Appeals
Clerk
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,
habeas corpus. Concluding that there is no
Circuit Judges.
jurisdiction in the district a quo, we affirm and
remand, so that Carmona may elect to transfer
JERRY E. SMITH, Circuit Judge:
his action to another district.
Jesus Carmona challenges the dismissal, for
I.
want of jurisdiction, of his petition for writ of
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-
Judge of the United States Court of Appeals
leased on parole via good-time credits. In
for the Eighth Circuit, sitting by designation.

2000, the Louisiana Board of Parole revoked
tion, without prejudice, based on Carmona's
Carmona's parole. While imprisoned in the
lack of subject matter jurisdiction.
Western District of Louisiana, Carmona filed,
in the Eastern District, a federal habeas chal-
Carmona promptly moved to vacate that
lenge pursuant to 28 U.S.C. § 2254 naming, as
dismissal and appealed the denial of that mo-
respondent, the warden of the prison in which
tion. The Middle District judge granted a cer-
he was confined.
tificate of appealability ("COA") on the issue
"of which court has jurisdiction when a peti-
A judge of the Eastern District determined
tioner is reincarcerated for violation of parole
that venue for Carmona's challenge properly
terms and is neither convicted nor incarcerated
rested in the Middle District of Louisiana.
in the judicial district where the revocation
That judge looked to 28 U.S.C. § 2241(d)1
occurred." We now review the Middle Dis-
and decided that the Board of Parole had
trict's dismissal.
"convicted" and "sentenced" Carmona.
Because t he Board is located in the Middle
II.
District, the Eastern District judge referred the
The instant appeal focuses entirely on the
matter to that district.
power of the Middle District to hear Carmo-
na's § 2254 claim, so we do not address the
A judge of the Middle District then dis-
merits of the case. We review de novo a dis-
missed Carmona's petition, without prejudice,
missal for lack of subject matter jurisdiction.
for failing to exhaust state remedies; Carmona
See, e.g., Williams v. Dallas Area Rapid Tran-
moved to vacate the dismissal. The Middle
sit, 242 F.3d 315, 318 (5th Cir. 2001). Addi-
District judge decided that that court did not
tionally, "`The issue of subject matter jurisdic-
have jurisdiction because the Board of Parole
tion is subject to plenary review by an appel-
is not a "State court" as mentioned in § 2241.
late court.'" Lincoln v. Case, 340 F.3d 283,
Consequently, the matter was transferred to
287 (5th Cir. 2003) (quoting Julian v. City of
the Eastern District, where a judge promptly
Houston, 314 F.3d 721, 725 (5th Cir. 2002)).
returned the matter to the Middle District,
Determining whether the Middle District can
afterSSonce againSSequating a parole board
entertain Carmona's appeal turns on (1) the in-
with a state court, whereupon the judge in the
teraction between §§ 2254 and 2241 and
Middle District, pursuant to a magistrate
(2) whether the Board of Parole operates as a
judge's recommendation, dismissed the peti-
state court.
A.
1 28 U.S.C. § 2241(d) states:
Section 2254 "confers jurisdiction upon the
federal courts to hear collateral attacks on
Where an application for a writ of habeas
state court judgments." Wadsworth v. John-
corpus is made by a person in custody under the
son, 235 F.3d 959, 961 (5th Cir. 2000).2 "Sec
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
2 See 28 U.S.C. § 2254(a) (stating that federal
person is in custody or in the district court for
courts "shall entertain an application for a writ of
the district within which the State
court was
habeas corpus [from one] in custody pursuant to
held which convicted and sentenced him . . . .
(continued...)
2

tion 2241 `specifies the court in which [the pe-
that state, which has more than one federal
tition] must be brought.'" Id. (quoting Story
judicial district." Id. at 963.3
v. Collins, 920 F.2d 1247, 1250 (5th Cir.
1991)). See 28 U.S.C. § 2241(a) (stating that
Secondly, as the Wadsworth panel noted,
federal courts may issue writs of habeas cor-
reading Braden as a broad grant of subject
pus "within their respective jurisdictions").
matter jurisdiction would run against a
The "respective jurisdictions" language pre-
common doctrine of statutory construction.
sumably limits the general habeas power con-
"This broad reading of § 2241(a) would trump
tained in § 2254.
the more specific § 2241(d). Thus, § 2241(d)
would be unnecessary." Wadsworth, 235 F.3d
Although the Supreme Court has discussed
at 963. Numerous panels of this court have
subject matter jurisdiction in § 2254 challeng-
articulated the canon of construction that
es, such a discussion does not apply to the
states that a more specific provision controls a
case at hand. In ruling that a district court
more general provision.4
could hear a habeas challenge from a person
imprisoned in another state, the Court opined
Accordingly, as Wadsworth noted, Braden
that "[s]o long as the custodian can be reached
does not invalidate the statutory regime
by service of process, the court can issue a
established by §§ 2254 and 2241. Though a
writ `within its jurisdiction' . . . even if the pri-
petitioner may have a broad right to file a
soner himself is confined outside the court's
habeas petition, he may do so only in a limited
territorial jurisdiction." Braden v. 30th Judi-
number of courts. Carmona falls perfectly
cial Cir. Ct., 410 U.S. 484, 495 (1973) (quot-
within the circumstances mentioned in §
ing § 2241(a)).
2241(d). Thus, the language of that section
determines the appropriate district(s) in which
In Wadsworth, 235 F.3d at 962, we rejected
Carmona may file his petition.
the notion that "a district court needs only the
capacity to serve process on the custodian in
B.
order to assert jurisdiction." Two of Wads-
Section 2241(d) lists two districts in which
worth's justifications for this conclusion apply
to Carmona's situation. First, "Braden pre-
sented the Supreme Court with a situation that
3 See also Mayfield v. Klevenhagen, 941 F.2d
none of the more specific subsections of
346, 348 (5th Cir. 1991) (rejecting claim that a
§ 2241 addressed." Id. at 962-63. In Braden,
District of Columbia district court could hear a
the Court was presented with a question of in-
federal habeas petition and stating the petitioner
terstate detainerSSan issue that § 2241 does
"was tried and sentenced in Texas; he is confined
not cover. Carmona, like Wadsworth, "is a
in Texas.").
prisoner pursuant to a state court judgment
4 See, e.g., United States v. John, 309 F.3d 298,
and sentence. He is currently confined within
302 n.5 (5th Cir. 2002) ("a principle of statutory
construction provides that a specific provision
takes precedence over a more general one."); Kirby
2(...continued)
Corp. v. Pena, 109 F.3d 258, 270 (5th Cir. 1997)
the judgment of a State court only on the ground
("It is a well-known canon of statutory con-
that he is in custody in violation of the Constitution
struction that a specific statutory provision governs
or laws and treaties of the United States.").
the general.").
3

a habeas petitioner may file: "in the district
state court for purposes of § 2241(d).6
court for the district wherein such person is in
custody or in the district court for the district
Furthermore, the Board neither "convicted"
within which the State court was held which
nor "sentenced" Carmona. It can only
convicted and sentenced him." The Eastern
implement policies as directed by the
District has asserted that the Board of Parole
legislature or the courts. The Orleans Criminal
constitutes a "State court" that "convicted and
District Court originally sentenced Carmona.
sentenced" Carmona.
The Louisiana legislature passed the relevant
statutes that detailed the granting and
Both assumptions are misplaced. First,
revocation of parole. LA. R.S. 15:571.13; LA.
within Louisiana, the Board of Parole does not
R.S. 15:571.3. In revoking Carmona's parole,
function as a state court. From an institutional
the Board of Parole only re-instituted the trial
perspective, the legislature created the body,
court's original sentence. Consequently, the
and the governor appoints its members. LA.
Board sentenced Carmona to nothing new, and
R.S. 15:574.2(A)(1) ("A board of parole . . . is
he received no new sentence, but merely lost
hereby created in the Department of Public
the good-time credits offered under LA. R.S.
Safety and Corrections. It shall consist of sev-
15:571.3.7
en members appointed by the governor.").
One may easily contrast the method of
selection for the members of the Board of
5(...continued)
Parole with the electoral process that produces
the [TCD] is not a state court, its actions cannot be
members of the Louisiana state judiciary. LA.
the basis for jurisdiction under § 2241(d).").
CONST. art. V, § 22(A) ("Except as otherwise
6
provided in this Section, all judges shall be
The Eastern District cited a Supreme Court
elected.").
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
Additionally, this court has explicitly
cases, however, relate not to the issue involved in
looked to the underlying nature of a correc-
this matter, but to immunity under 42 U.S.C.
tional entity and has determined that such a
§ 1983.
body is not a state court. Story v. Collins, 920
F.2d 1247, 1251 (5th Cir. 1991). In Story, the
7 Additionally, this court's language does not
panel stated that the Texas Department of
connect parole revocation with sentencing or with
Corrections ("TDC") "is not a state court."
conviction. Parole is "revoked." See, e.g., Alexan-
Id. The Louisiana Board of Parole is part of
der v. Cockrell, 294 F.3d 626, 630 (5th Cir. 2002)
the Department of Public Safety and
(noting that "the State sought to revoke Alexan-
Corrections, a Louisiana entity analogous to
der's parole"); Barnes v. Johnson, 184 F.3d 451,
the TDC.5 Consequently, the Board is not a
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
5 Although this statement did not occur in the
the sentencing as an act separate from a board's
context of a § 2241(d) analysis, the Wadsworth
consideration of a particular case. See, e.g., Jones
panel applied such a statement to the consideration
v. Jones, 163 F.3d 285, 292 (5th Cir. 1998) (de-
of venue. Wadsworth, 235 F.3d at 962 ("Because
tailing the Board's limited power to consider a case
(continued...)
(continued...)
4

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).
5