Opinion
3:04-CV-1453-D.
August 31, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this cause has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, et seq. Parties: Petitioner is presently confined at the Dallas County Jail in Dallas, Texas. The court has not issued process in this case. However, on August 19, 2004, the magistrate judge submitted a questionnaire to Petitioner, who filed his answers on August 27, 2004.
Despite its designation as a petition fro writ of habeas corpus, the clerk's office docketed the same as a prisoner civil rights action pursuant to 42 U.S.C. § 1983.
Statement of Case: On June 8, 2004, Petitioner was indicted in this Court for the offense of threatening a federal official.See United States v. Ruston, 3:04cr191-G (N.D. Tex., Dallas Div.). On August 18, 2004, Chief Judge A. Joe Fish issued a writ of habeas corpus ad prosequendum to secure his presence for an initial appearance on August 20, 2004. The case was thereafter set for arraignment on August 31, 2004, at 1:45 p.m. Petitioner is presently in state custody awaiting trial on state charges in State v. Ruston, Nos. F04-15925, F04-21379, and F04-24674. (Answer to Question 1 of the Magistrate Judge's questionnaire).
In this habeas action, Petitioner challenges the detainer or "hold" lodged against him with the Dallas County Sheriff Department. Specifically he requests this court "to lift [the] `hold' placed on Petitioner." (Petition at 1). He alleges that he is "being deprived of his constitutional right to liberty, due process, right to counsel . . ." since criminal charges were dismissed against him in United States v. Ruston, 3:01cr178-X. (Id.).
Findings and Conclusions: The magistrate judge must first address whether the District Court has habeas jurisdiction over this case.
The primary function of the writ of habeas corpus is to seek release from unlawful custody or imprisonment. Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997). 28 U.S.C. § 2241(c) provides that "[t]he writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States. . . ." "Absent custody by the authority against whom relief is sought, jurisdiction usually will not lie to grant the requested writ."Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988) (citing 28 U.S.C. § 2241(c); 39 C.J.S. Habeas Corpus §§ 6-7 (1976);Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976) (habeas corpus may not be used to adjudicate matters "foreign to the question of the legality of custody.")) The Supreme Court has made it clear that the "in custody" determination is made at the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5th Cir. 2004).
At the time of filing the instant petition for a writ of habeas corpus, Petitioner was not "in custody" under the indictment issued in federal court in No. 3:04cr191-G. Rather he was in state custody awaiting trial on the criminal charges pending against him in Dallas County. (See Answer to Question 1). The unexecuted federal arrest warrant was merely lodged as a detainer or "hold" with the Dallas County Sheriff's Department. While a writ of habeas corpus ad prosequendum was subsequently issued to secure Petitioner's presence for an initial appearance and for any further proceedings to be had in this Court, in No. 3:04cr191-G, the writ specifically ordered that "at the conclusion of said proceedings" the United States Marshal shall "return said detainee to the above-named custodian" — i.e., the Dallas County Sheriff. (See Writ of Habeas Corpus Ad Testificandum filed on August 18, 2004). Therefore, because Petitioner is not presently in federal custody, nor was he in federal custody at the time of filing the petition in this case, the District Court lacks subject matter jurisdiction to hear this habeas petition and the same should be dismissed. RECOMMENDATION
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be dismissed for want of subject matter jurisdiction.
A copy of this recommendation will be mailed to Petitioner Lester Jon Ruston, Dallas County Jail, Lew Sterrett, #04037709, 500 Commerce Street, Dallas, Texas 75202.