Zani v. U.S. Marshals , 351 F. App'x 299 ( 2009 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    October 28, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    ROBERT JOSEPH ZANI,
    Petitioner-Appellant,
    v.
    No. 09-4107
    U.S. MARSHALS; SALT LAKE
    (D. Utah)
    CITY; TEXAS BOARD OF
    (D.C. No. 2:09-cv-00042)
    CRIMINAL JUSTICE,
    Respondents-Appellees.
    ORDER DENYING CERTIFICATE OF APPEALABILITY *
    Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
    Petitioner Robert Joseph Zani, a state prisoner currently incarcerated in
    Tennessee Colony, Texas, applies for a certificate of appealability (“COA”) to
    challenge the district court’s dismissal of his 
    28 U.S.C. § 2241
     petition for lack of
    *
    This Order is not binding precedent, except under the doctrines of law
    of the case, res judicata, and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After
    examining the appellate record, this three-judge panel determined unanimously
    that oral argument would not be of material assistance in the determination of this
    matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    jurisdiction. For the reasons stated below, we deny a COA, and dismiss the
    appeal.
    While incarcerated in Texas, Mr. Zani filed a pro se 1 application for writ of
    habeas corpus pursuant to 
    28 U.S.C. § 2241
     in the United States District Court for
    the District of Utah. The district court dismissed his petition, holding that the
    court lacked jurisdiction because Mr. Zani was incarcerated in Texas and his
    § 2241 petition was properly filed in the federal judicial district of Mr. Zani’s
    incarceration. The court dismissed the petition without prejudice so as to not
    prevent Mr. Zani from filing his petition in a court of competent jurisdiction. The
    court chose to dismiss the petition rather than to transfer it pursuant to 
    28 U.S.C. § 1641
    , finding that a “quick review of the merits reveals that Petitioner’s claims
    are very likely doomed as fantastic and possibly delusional.” R., Vol. I, Doc. 5,
    at 2 (Mem. Decision, dated May 15, 2009).
    Because the district court dismissed Mr. Zani’s habeas petition without
    granting him a COA, Mr. Zani may not appeal the district court’s order absent a
    grant of a COA by this court. 2 
    28 U.S.C. § 2253
    (c)(1)(A); Montez v. McKinna,
    
    208 F.3d 862
    , 869 (10th Cir. 2000) (holding that § 2253(c)(1)(A) applies when a
    1
    Because Mr. Zani proceeds pro se, we liberally construe his filings,
    including his application for a COA. See Van Deelen v. Johnson, 
    497 F.3d 1151
    ,
    1153 n.1 (10th Cir. 2007).
    2
    The district court did not act on Mr. Zani’s request for a COA, but
    pursuant to Tenth Circuit Rule 22.1(C), that inaction is deemed to be a denial.
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    state habeas petitioner proceeds under § 2241); see also Clark v. Oklahoma, 
    468 F.3d 711
    , 713 (10th Cir. 2006) (“A COA is a jurisdictional pre-requisite to our
    review.” (citing Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003))). To obtain a
    COA, Mr. Zani must make “a substantial showing of the denial of a constitutional
    right.” 
    28 U.S.C. § 2253
    (c)(2). When the district court denies a habeas petition
    on procedural grounds, a petitioner is not entitled to a COA unless he can show
    both that “jurists of reason would find it debatable whether the petition states a
    valid claim of the denial of a constitutional right and that jurists of reason would
    find it debatable whether the district court was correct in its procedural ruling.”
    Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000) (emphasis added).
    “‘A petition under 
    28 U.S.C. § 2241
     attacks the execution of a sentence
    rather than its validity and must be filed in the district where the prisoner is
    confined.’” Haugh v. Booker, 
    210 F.3d 1147
    , 1149 (10th Cir. 2000) (quoting
    Bradshaw v. Story, 
    86 F.3d 164
    , 166 (10th Cir. 1996)). As the district court
    found, Mr. Zani is in state custody in Tennessee Colony, Texas. Thus, reasonable
    jurists could not debate the district court’s conclusion that it lacked jurisdiction to
    consider the merits of his petition.
    Although jurisdictional defects that arise from a suit being filed in the
    wrong federal district may be remedied by transfer pursuant to 
    28 U.S.C. § 1631
    ,
    such transfer is appropriate only “if it is in the interest of justice.” 
    28 U.S.C. § 1631
    ; see Trujillo v. Williams, 
    465 F.3d 1210
    , 1222 (10th Cir. 2006) (“Although
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    . . . § 1631 contain[s] the word ‘shall,’ we have interpreted the phrase ‘if it is in
    the interest of justice’ to grant the district court discretion in making a decision to
    transfer an action . . . .”). It does not appear that Mr. Zani argues on appeal that
    the district court should have transferred this matter instead of dismissing it.
    Rather, Mr. Zani’s position seems to be that state officials where he is
    incarcerated (i.e., Texas) are acting as a proxy for the United States Marshals
    Service, located in Utah; therefore, jurisdiction is proper in Utah. 3
    Even if Mr. Zani’s filings could be read to include an objection to the
    district court’s decision not to transfer the case, we would conclude for at least
    two reasons that reasonable jurists could not debate that the district court did not
    abuse its discretion in declining to transfer the case. First, “a court is authorized
    to consider the consequences of a transfer by taking a peek at the merits to avoid
    raising false hopes and wasting judicial resources that would result from
    transferring a case which is clearly doomed.” Haugh, 
    210 F.3d at 1150
     (internal
    quotation marks omitted). We agree with the district court’s assessment of the
    merits of Mr. Zani’s petition as being clearly doomed and therefore inappropriate
    for transfer.
    Second, “[w]e have previously recognized the broad support that exists for
    the proposition that ‘it is not in the interest of justice to transfer where a plaintiff
    3
    Mr. Zani offers not a shred of evidence or even a detailed argument
    to support this bald allegation, however.
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    either realized or should have realized that the forum in which he or she filed was
    improper.’” Kelso v. Luna, 317 Fed. App’x 846, 848 (10th Cir. 2009) (quoting
    Trierweiler v. Croxton & Trench Holding Corp., 
    90 F.3d 1523
    , 1544 (10th Cir.
    1996)). As in Kelso, Mr. Zani should have realized that Utah was an improper
    forum because we have had occasion to put him on notice that such
    geographically misdirected § 2241 filings are improper. Specifically, Mr. Zani
    previously filed a § 2241 petition in the District of Colorado and this court
    concluded that the district court lacked jurisdiction over that petition because Mr.
    Zani was not incarcerated in Colorado but rather in Texas (as now) and the
    federal judicial district encompassing his place of incarceration was the proper
    filing location. See Zani v. U.S. Marshals Serv., No. 09-1110, 
    2009 WL 2197343
    ,
    at *1 & n.2 (10th Cir. July 24, 2009); cf. Kelso, 317 Fed. App’x at 848.
    Accordingly, Mr. Zani should have known that filing in the District of Utah was
    improper, and this circumstance strongly suggests that a transfer was
    inappropriate. In any event, given this circumstance, we would be hard-pressed
    to conclude that reasonable jurists could debate whether the district court abused
    its discretion in electing not to grant a transfer.
    For the foregoing reasons, we DENY a COA and DISMISS the appeal.
    ENTERED FOR THE COURT
    Jerome A. Holmes
    Circuit Judge
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