Ortiz-Perez v. Gonzalez, No. 4:2019cv00315 - Document 5 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Ortiz-Perez v. Gonzalez Doc. 5 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION OSCAR GEOVANY ORTIZ-PEREZ, SPN #02962692, § § § § § § § § § § § Petitioner, v. HARRIS COUNTY SHERIFF ED GONZALEZ, 1 Respondent. February 15, 2019 David J. Bradley, Clerk CIVIL ACTION NO. H-19-0315 MEMORANDUM OPINION AND ORDER The petitioner, Oscar Geovany Ortiz-Perez (SPN #02962692), is currently in custody as a pretrial detainee at the Harris County Jail, which is operated by the Harris County Sheriff's Department. The petitioner has filed a Writ of Habeas Corpus Requesting Release to Personal Recognizance Bond per 18 U.S.C. (Docket Entry No. 1). concludes that this § 3142 ("Petition") After considering the pleadings, the court case must be dismissed for the reasons explained briefly below. I . Background The petitioner contends that he is currently in state custody 1 The petitioner does not identify a respondent. Because the petitioner is confined in the Harris County Jail, the court substitutes Harris County Sheriff Ed Gonzalez as the proper respondent pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts, which also apply to petitions filed under 28 U.S.C. § 2241. Dockets.Justia.com as the result of false charges filed against him by his roommate's girlfriend. 2 Court records reflect that the petitioner has been charged with the felony offense of indecency with a child by sexual contact in Harris County Cause No. 1604622. 3 that he has remained immigration officials custody. 4 in custody have The petitioner claims since placed a his "hold" arrest or detainer because on his The petitioner asks this court to issue a writ of habeas corpus and grant him release on his own personal recognizance under 18 u.s.c. § 3142. 5 II. Discussion To obtain a federal writ of habeas corpus a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c) (3). A petitioner seeking a writ of habeas corpus must be "in custody" at the time his petition is filed. Pack v. Yusuff, 218 F.3d 448, 454 n.5 (5th Cir. 2000). The petitioner does not show that he is in custody in violation of the constitution or that he is entitled to relief under federal law. 2 Although he invokes 18 U.S.C. § 3142(b), which Petition, Docket Entry No. 1, p. 2. 3 See State of Texas v. Oscar Geovanv Ortiz-Perez, Cause No. 1604622 (337th Dist. Ct. for Harris Cnty.), available through the Office of the Harris County District Clerk, http://www.hcdistrict.clerk.com (last visited Feb. 11, 2019). 4 Petition, Docket Entry No. 1, p. 2. 5 Id. at 1. -2- authorizes the release of a recognizance pending a trial, criminal defendant on personal this statute does not benefit the petitioner because he is not facing federal criminal charges. More importantly, he is not in federal custody for purposes of habeas corpus review. See Zolicoffer v. United States Dep't of Justice, 315 F.3d 538, 541 (5th Cir. 2003) (holding that prisoners are not "in custody" for purposes of habeas corpus review simply because federal immigration officials have issued a detainer against them) . Under these circumstances the petition must be dismissed for failure to state a claim upon which relief may be granted. III. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Writ of Habeas Corpus Requesting Release to Personal Recognizance Bond per 18 U.S. C. § 3142 (Docket Entry No. 1) filed by Oscar Geovany OrtizPerez is DENIED. 2. This action is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. 3. A certificate of appealability is DENIED. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the petitioner. SIGNED at Houston, Texas, on this the I~ day of ~J , 2019. SIM LAKE UNITED STATES DISTRICT JUDGE -3-
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