Opinion
2:04-CV-0009.
July 28, 2004
ORDER TO DESIGNATE CASE AS A HABEAS CORPUS CASE, AND RECOMMENDATION TO DENY PETITION
Petitioner JESUS ANTONIO ORTEGA is presently confined in the Texas Department of Criminal Justice ("TDCJ") pursuant to a six-year sentence assessed on or about December 20, 2002, out of the 4th Judicial District Court, Rusk County, Texas. Petitioner is serving this sentence after having been convicted of the second degree felony of sexual assault.
Petitioner ORTEGA initiated this action by filing, on January 12, 2004, a pleading entitled "Petitioner's Motion for Expedited Removal Proceeding's (sic) Under I.N.A. § 238(A)(1) and Title 8 U.S.C. § 1228(A) (1)." By this pleading, petitioner requests that an Order issue directing petitioner's release from the Texas Department of Criminal Justice-Institutional Division, and ordering his immediate transfer to the United States Immigration and Naturalization Service ("INS") for deportation.
Because of the title of the initial pleading, the case was designated as a mandamus action against the INS upon receipt and initial filing. After review of the pleadings submitted by petitioner ORTEGA, it is clear that while he does seek immediate deportation from the United States to his home country of Mexico, he must first obtain and is primarily seeking release from TDCJ-ID. Therefore, the Clerk is ORDERED to redesignate this case as a habeas corpus action by an individual serving a sentence imposed by the state courts, and to designate Douglas Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, as respondent.
I. EXHAUSTION
Petitioner has not shown he has exhausted available state court remedies in seeking his release from state custody. This Court may, however, deny an unexhausted habeas petition. See 28 U.S.C. § 2254(b)(2). It is the opinion of the Court that petitioner is not entitled to any relief. Therefore, this case should be heard rather than dismissed for failure to exhaust state court remedies.
II. MERITS
Other than his desire to avoid serving the six-year sentence, petitioner has provided the Court with no legal basis that he should immediately be released from TDCJ, nor has he cited any legal authority authorizing this Court to order his immediate release from TDCJ. Petitioner has not challenged his underlying conviction and sentence in any manner. He has been convicted and is now obligated to serve his sentence in TDCJ unless Texas authorities choose to release him by granting parole or some other form of conditional release. Since petitioner has failed to provide any legal basis justifying his release from the penitentiary, he is not entitled to relief.
Further, even if this Court were to construe his petition as a request that the federal immigration authorities immediately take ORTEGA into custody and deport him to Mexico, petitioner has failed to provide a legal basis for such an action, nor has he shown that he exhausted administrative remedies by requesting such action by the Immigration and Naturalization Service, or their successor agency. Further, Title 8 U.S.C. § 1231(a)(4)(A) provides that the Attorney General may not remove an alien sentenced to imprisonment until the alien is released from imprisonment. Lastly, any request by ORTEGA for this Court to order INS to immediately deport him is not ripe for adjudication unless and until ORTEGA is actually released from TDCJ and is in the custody of federal immigration officials.
III. RECOMMENDATION
Based upon the foregoing, it is the opinion and finding of the undersigned United States Magistrate Judge that the petition for writ of habeas corpus filed by petitioner JESUS ANTONIO ORTEGA be DENIED.
IT IS SO RECOMMENDED.