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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 94-50667
_______________
IN THE MATTER OF:
RICKY LEE GREEN,

Petitioner.
_________________________
Petitions for Writs of Mandamus to
the United States District Courts
for the Northern and Western Districts of Texas
_________________________
(November 28, 1994)
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this capital habeas corpus proceeding brought pursuant to
28 U.S.C. § 2254, the petitioner, Ricky Green, has filed a peti-
tion for writ of mandamus that calls upon us to decide which fed-
eral district court or courts have jurisdiction. On the basis of
a recent decision of this court, we conclude that there is juris-
diction in the Western and Southern Districts of Texas but not in
the Northern District of Texas.
I.
In 1989, Green was indicted in Criminal District Court No. 4
of Tarrant County, Texas (a county within the Northern District
of Texas), with the capital murder of Steven Fefferman. After

jury selection began, the state withdrew its objection to Green's
motion for change of venue, which the trial court then granted,
and the case was transferred to Travis County, Texas (a county in
the Western District of Texas), for trial in the 167th Judicial
District Court of that county.
Following a jury trial, Green was found guilty of capital
murder in 1990 and was sentenced to death. Venue then was trans-
ferred back to the Tarrant County court. The Texas Court of
Criminal Appeals affirmed the conviction and sentence. Green v.
State, No. 71,170 (Tex. Crim. App. Dec. 9, 1992) (unpublished),
cert. denied, 113 S. Ct. 3011 (1993). In January 1994, Green
applied to the Tarrant County trial court for state habeas re-
lief, which was denied. Ex parte Green, No. 26,331-01 (per
curiam) (Tex. Crim. App. Apr. 19, 1994).
On August 16, 1994, the Tarrant County trial court scheduled
Green's execution for October 4, 1994. On September 19, Green
filed, in the Northern District of Texas, a motion for
appointment of counsel and stay of execution.1 On September 21,
the federal court appointed an attorney from the Texas Resource
Center as Green's counsel but denied, without prejudice, the
request for stay. The court directed Green to file a federal
habeas petition by September 27 or tell the court, by that date,
that he did not intend to file a petition.
1 Although the petition indicated that it was filed pro se, a
representative of the Texas Resource Center acknowledged, in a subsequent
telephone hearing transcribed in the record, that the Resource Center had
helped Green prepare and file the federal petition.
2

On September 27, Green filed a notice of intent not to file
a federal habeas petition. He also filed a motion to withdraw
his motion for appointment of counsel and stay of execution,
asking the court to rescind its orders made pursuant to that pro
se filing and to dismiss the habeas proceeding.2 As justification
for the motion, Green stated that his attorney had just
discovered that the Northern District court was without
jurisdiction. The court then ordered briefing on that issue.
On September 30, Green filed a second state habeas petition
in the Tarrant County trial court. On October 3, the Court of
Criminal Appeals adopted the trial court's recommendation and
denied relief on the procedural ground that the court would not
consider the petition while Green's case was pending in federal
court. Ex parte Green, No. 26,331-02 (Tex. Crim. App. Oct. 3,
1994) (per curiam). On that same date, Green filed a notice of
voluntary dismissal of the Northern District habeas proceeding
pursuant to FED. R. CIV. P. 41(a)(1).
Also on October 3, at approximately 3:30 p.m., which was
about nine hours before his scheduled execution, Green filed a
federal habeas petition and motion for stay of execution in the
Western District of Texas. The Western District court, on the
state's motion, transferred the proceeding to the Northern
District at approximately 5:00 p.m. that same day.
2 Green's rationale for requesting dismissal of the habeas proceeding,
when no explicit request had been made for habeas relief, was that under
McFarland v. Scott, 114 S. Ct. 2568, 2572-73 (1994), the filing of the motion
for appointment of counsel constituted the initiation of a federal habeas
proceeding.
3

The state then announced that it had no objection to a stay
of execution. In this court, Green filed a motion for stay of
execution and mandamus actions seeking to compel the return of
the case to the Western District. We then entered a stay of
execution but took no action on the pending mandamus actions.
On October 4, the Northern District court entered an order
concluding, on the basis of Dobard v. Johnson, 749 F.2d 1503
(11th Cir. 1985), that the Western, Northern, and Southern
Districts of Texas have concurrent jurisdiction to entertain a
federal habeas petition from Green. Accordingly, the court
reasoned, the transfer from the Western District to the Northern
District was proper. The court ordered the state to respond to
the federal habeas petition.3
II.
Federal habeas corpus jurisdiction is determined by
28 U.S.C. § 2241(d), which reads as follows in regard to a state
containing more than one federal judicial district:
[T]he 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
and each of such district courts shall have concurrent
jurisdiction to entertain the application. The
district court for the district wherein such an
3 Green moved in this court for a stay of the Northern District
proceedings pending our ruling on the mandamus petitions. We denied the
motion on the ground that it had not been presented, in the first instance, to
the district court. Green then moved for a stay in the Northern District.
After that court denied the motion, Green once again requested that we grant a
stay. We have now done so, and the Northern District proceedings are in
abeyance pending our consideration of the jurisdictional issue presented in
the mandamus petitions.
4

application is filed in the exercise of its discretion
and in furtherance of justice may transfer the
application to the other district court for hearing and
determination.
Although Green is incarcerated in the Southern District of Texas,
which indisputably would have jurisdiction under the statute's
plain language, the only dispute here is in regard to
jurisdiction in the Western and Northern Districts.
The controversy centers on the meaning of the words "the
district within which the State court was held which convicted
and sentenced" the criminal defendant. (Emphasis added.) Green
argues that his case is controlled by this court's recent
decision in Gosch v. Collins, 20 F.3d 1170 (per curiam) (table),
No. 93-8635 (5th Cir. Apr. 6, 1994). We agree.
In Gosch, the petitioner was indicted in Bexar County (in
the Western District of Texas) but was tried, convicted, and
sentenced, on a change of venue, in Victoria County (in the
Southern District of Texas). As here, the matter was returned to
the county of indictment for post-trial proceedings. The
petitioner filed his federal habeas petition in the Western
District of Texas, whereupon the district court dismissed the
petition for lack of subject matter jurisdiction.
On appeal, a panel of this court concluded that there was no
jurisdiction in the Western District, because "under 28 U.S.C.
§ 2241(d) . . . jurisdiction for habeas corpus petitions for
Petitioner Gosch lies only in the . . . Southern District of
Texas." This constitutes an interpretation of the words "within
which the State court was held which convicted and sentenced
5

him," to the effect that post-trial proceedings, following
sentencing, are not to be considered in determining jurisdiction
under § 2241(d).
Accordingly, the present facts))and those in Gosch))are
easily distinguished from the circumstance in Dobard, the
authority principally relied upon by the state. There, as here,
indictment was in a county within one federal district, but
trial, on a change of venue, was in a county within a different
federal district. Following trial, "some of the incidents of
sentencing were, in the physical sense, done in one county, some
in the other." 749 F.2d at 1505.4
The petitioner filed his federal habeas petition in the
district wherein the indictment occurred. That district court
transferred the proceeding to the district where the trial was
held. On appeal from the transfer order, the Eleventh Circuit,
referring to the "peculiar circumstances" of the case, held "that
where substantial incidents of conviction and sentence are
4 The complicated course of proceedings between the two counties was as
follows:
The murder . . . occurred in Sumter County . . . . Dobard was
indicted in . . . Sumter County, and numerous pretrial motions
were filed and heard in that court. [The trial court] transferred
the trial . . . to Marengo County . . . . Various pretrial
motions were heard in Sumter County, but . . . after the transfer
. . . all orders were entered by the Circuit Court of Marengo
County. . . . [T]he sentencing hearing . . . was heard in Sumter
County and petitioner was there orally sentenced . . . . The
judge signed the sentencing order while in Marengo [County].
Dobard's motion for a new trial was received by the circuit clerk
in Sumter [County] and then sent on to be filed in Marengo
[County]. The hearing on the new trial motion was conducted in
Sumter [County].
749 F.2d at 1505.
6

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." Id.
Obviously, the facts of the instant case are like those in
Gosch and dissimilar to those in Dobard. We are bound by Gosch
as the precedent of this court. Accordingly, we conclude that
jurisdiction lies in the Western District of Texas and not in the
Southern District of Texas.
We find it unnecessary, however, to issue a writ of mandamus
at this time. The two district courts were dealing with a
somewhat novel issue and, in good faith, attempted to comply with
the law. We are confident that, in light of this opinion, they
now will see to it that this matter is transferred to the Western
District of Texas, which in turn will consider Green's habeas
petition on the merits.
The petitions for writs of mandamus are DENIED without
prejudice.
7