Jenkins v. Gonzales, No. 4:2019cv04927 - Document 4 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis. Petition for Writ of Habeas Corpus is dismissed. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Jenkins v. Gonzales Doc. 4 United States District Court Southern District of Texas ENTERED December 23, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXA S HOUSTON DIVISTON David J. Bradley, Clerk LONDON JENKINS, SPN #02834419, Petitioner, CIV IL ACTION NO . H-19-4927 HARRIS COUNTY SHERIFF ED GONZALES, Respondent . MEMORANDUM OPIN IQY AND ORDER The petitioner, London Jenkins (SPN #02834419), is currently custody Harris County Jenkins has filed a Petition pretrial detainee . Writ Habeas Corpus Under 2241 (npetition'') (Docket Entry regarding the criminal charges that are pending against him . A fter considering court without prejudice 1. Jenkins indicates dism iss the reasons explained below . Backcround that eurrently pretrial detainee facing unspecified charges .' custody as Public records clarify that Jenkins has been charged with committing aggravated robbery with a deadly weapon Harris County Cause 1607831 'Petition, Docket Entry No . Dockets.Justia.com and 1607832 , wh ich are pending against him the 174th District Harris County, Texasx Jenkins seeks relief under 28 U .S.C . 5 2241 from his continued pretrial detention the Harris Jail, arguing that his constitutional rights have been violated connection with his state court indictment does not state sufficient constitute an offense under Texas law ; the charges have been lodged in violation of the Fourth, Fifth, and Sixth Amendments to the United States Constitution, as well as the Due Process and Equal Protection Clauses, because there is nphysical evidence'' against him ; the charges violate Substantive Due Process and Equal Protection of the Laws, as well as the Fourth, Fifth, and Sixth Amendments, because he has a nsworn affidavit'' from an neye witness'' that proves his innocence; and the charges violate Due Process and Equal Protection because there was ''no probable cause'' to arrest him on ''hearsay'' evidence from an nunreliable'' witnessx Because Jenkins acknowledges that appeal raised these Petition is subject previously filed sort court, his dismissal for lack of exhaustion .d 2see Harris County District Clerk's Office website, available https://www.hcdistrictclerk.com (last visited Dec. 23, 2019). Bpetition , Docket Entry II . Because Jenkins Diaeussion pretrial detainee 5 2241, which authorizes Petition federal writ of habeas corpus where a prisoner can show that he violation Constitution States.'' 28 seek laws 2241(c)(3). federal treaties United pretrial detainee habeas corpus under 5 are met : custody for purposes 224l (c); and exhausted available state remedies . 816 F.2d 220, uin custody the the petitioner must the petitioner must have See Dickerson v . Louisiana, (5th Cir. 1987); see also Braden v. 30th Judicial Circuit Court of Kentuckv? Although Jenkins meets S. 1126-27 first prerequisite his con finement at the Harris second prerequisite because (1973). review by virtue Jail, he does not meet the is apparent from the pleadings he has not exhausted available state court remedies before seeking relief federal court . exhaust remedies claims followed Texas, Texas Court of Crim inal Appeals petition present filing an appeal discretionary review application for a writ of habeas corpus . See Myers v . Collins, F .2d 1074, (5th 1990) (exhaustion be accomplished directly pre-conviction context , Texas prisoner confined after a Article Code of Criminal Procedure with the judge indicted . See Tex . Code Crim . denies habeas remedy take the court in which he 5 under A rticle applicant's direct appeal interm ediate appellate by the Texas Court Criminal Appeals. See, e .q ., Ex parte Twyman , S .W .2d 952 (Tex . Crim . App . 1986) (citing Ex parte Payne, 618 S .W .2d 380, (Tex. Crim . 1981) (citations omittedl). Jenkins acknowledges that he has appeal and , as a result, he has presented his allegations Texas Court of Criminal Appealsx review facts raised his claim s in any showing that remedy constitutional claim s are concerned . unavailable He does not otherwise show that exceptional circum stances are present intervention is warranted. that federal See Younqer v . Harris, (explaining that federal state crim inal proceedings unless present) where interfere are The court concludes, therefore, that the pending federal habeas exhaustion . ssee Petition, Docket Entry without prejudice for lack 111 . Certificate of Appealability of the Rules Governing Section 2254 Cases requires certificate district under 5 2253 when entering a final order that is adverse petitioner . Where the petitioner requirement custody, under appealability U .S .C . 2241. prisoner in state applies petitions See Stringer v . Williams, 1998) ('N sectionq 2253 clearly does not encompass challenges federal detention under 2241. however, 5 2253 does encompass challenges clearly, state detention under 2241.''). certificate petitioner makes unless appealability substantial constitutional right,'' 28 showing denial requires 5 2253(c) petitioner to demonstrate nthat find the district court ls assessment of w rong .'' Tennard v. Dretke, 2562, (quoting Slack v. McDaniel, show whether only that njurists petition states 1595, (2000)). Where reason would find valid (2004) debatable the denial constitutional right,'' but also that they nwould find it debatable whether the district court was correct Slack, at 1604. procedural ruling.'' Reasonable jurists would not debate that the petitioner has exhausted Petition available remedies premature . Therefore , certificate appealability issue . IV . Based Conclusion and Order the foregoing, court ORDERS as follows: The Petition Habeas Corpus Under 28 5 2241 filed by London Jenkins (Docket Entry No . DISMISSED without prejudice lack of exhaustion . 2. The Application Fees Proceed W ithout Prepayment Jenkins (Docket Entry GRAN TED . is DEN IED . The Clerk shall provide a Order the petitioner . SIGNED at Houston, Texas, this thea Kh day of -, 2019. e -r SIM LA K E UN IT ED STA T ES DI ST R ICT JUDG E
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