Serrano v. El Paso County Jail Sheriff, No. 3:2016cv00190 - Document 6 (W.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER dismissing Petition for a Writ of Habeas Corpus under 28 U.S.C. 2254 without Prejudice; Denying Certificate of Appealability and pending Motions; and Closing Civil Case. Signed by Judge David C Guaderrama. (em)
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Ser anov.ElPasoCountyJailSherif Doc.6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION ROSA SERRANO, Petitioner, t'c j'U .5 § § § v. EP-16-CV-190-DCG § § EL PASO COUNTY JAIL SHERIFF RICHARD WILES, Respondent. § § § MEMORANDUM OPINION AND ORDER Petitioner Rosa Serrano challenges three contempt orders entered by County Court at Law Number Seven in El Paso County, Texas, requiring her confinement in the El Paso County Jail. The County Court issued the contempt orders in civil cases involving disputes between Serrano, doing business as The Lens Factory, and Pellicano Business Park, L.L.C., Old Republic National Title Insurance, and City Bank Texas, N.A. The County Court ordered Serrano to serve three days in cause number 2012-DCV06341, fifteen days in cause number 2015-DCV1O79, and seventy-five days in cause number 2012-DCV06341, after she failed to comply with its orders.' In her petition for a writ of habeas corpus under 28 U.S.C. § 2254, Serrano asserts the County Court violated her Sixth and Fourteenth Amendment rights because she did not have the assistance of counsel for her defense at the contempt hearing.2 She also claims the contempt 625 F.2d 1146, 1149 (5th Cir. 1980) ("The conclusive, most important factor in distinguishing civil and criminal contempt is the purpose of the contempt judgment. If its purpose is to coerce the contemnor into compliance with the court's order or to compensate the complainant for losses sustained, then the proceeding is civil. On the other hand, if its purpose is to punish or to vindicate the authority of the court, then the proceeding is criminal.") (citations omitted). See In re Dinnan, 2 Pet'r's First Pet. 6, June 6, 2016, ECF No. 1. Dockets.Justia.com p; : i9 orders are void because the County Court failed to enter a commitment order.3 Serrano indicates in a letter to the Court that she is not in custody.4 Serrano also explains she has a petition for a writ of mandamus pending in the Texas Eighth Court of Appeals in cause number Serrano asks the Court to vacate the contempt 08-16-00 110-CV.5 "Federal courts are courts of limited jurisdiction. orders.6 They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree."7 They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum."8 Moreover, "[f]ederal courts, both trial and appellate, have a continuing obligation to examine the basis for jurisdiction."9 Federal Rule of Civil Procedure 12(h)(3) requires that federal courts dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter."10 Accordingly, a court may sua sponte raise the jurisdictional issue at any time.11 Serrano brings the instant cause pursuant to § 2254. Federal district courts have 31d. " Pet'r's Second Pet. 6, June 6,2016, ECF No. 1-1. Pet'r's First Pet. 6 ' 8 Id.at7. Kokkonen v. Guardian Life ins. Co. ofAm., 511 U.S. 375, 377 (1994) (citations omitted). Howery v. Allstate ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). MCG, Inc. 10 3. FED. R. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). Civ. P. 12(h)(3). " Id.; Burge v. Parish ofSt. Tammany, 187 F.3d 452, 465-66 (5th Cir. 1999). -2.. jurisdiction to entertain petitions under § 2254 only from persons who are "in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."2 Serrano concedes she is not in custody.'3 Moreover, "[f]ederal habeas relief is available to state prisoners only after they have exhausted their claims in state court."14 In Texas, the only method to challenge a contempt order if the contemnor is confined and the matter stems from a civil law matter is through an original habeas corpus proceeding in the Texas Supreme Court or Courts of Appeals.'5 The Texas Supreme Court has jurisdiction to issue writs of habeas corpus in civil matters pursuant to Texas Constitution Article V, § 3, and Texas Government Code § 22.002(e). Concurrently with the Texas Supreme Court, Courts of Appeals have jurisdiction to issue such writs pursuant to Texas Government Code § 22.221(d). Serrano has a petition for a writ of mandamus challenging the contempt orders pending in the Texas Eighth Court of Appeals in cause number 08-16-00110-CV.'6 Thus, she has not exhausted her claims in state court. Finally, Serrano's "petition under 28 U.S.C. § 2254 is improper because that section applies only to post-trial situations and affords relief to a petitioner 'in custody pursuant to the 28 U.S.C. § 2254(a) (2012) (emphasis added); see also Lackawanna County Dist. Coss, 532 U.S. 394, 394 (2001); Malengv. Cook, 490 U.S. 488, 492 (1989). 12 ' Pet'r's Second Pet. ' O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999) (citing 28 U.S.C. Att. 17, June 6,2016, ECF No. 1-1. § 2254(b)(1), (c)). See Tex. R. App. P.52.1; ExparteAcker, 949 S.W.2d 314, 315 (Tex. 1997) (holding in an original Texas Supreme Court proceeding that a contempt order was "unenforceable because the trial court did not inform relator of her right to counsel when she appeared pro se at the contempt hearing"). 16 Pet'r's Pet 3. See also http://www.txcourts.gov/8thcoa.aspx (search for 08-16-001 l0-CV), last visited June 16, 2016. -3- Serrano, "are properly judgment of a state court."17 Petitions such as the instant pleading filed by of whether final brought under [28 U.S.C.] § 2241, which applies to persons in custody regardless against him."8 judgment has been rendered and regardless of the present status of the case pending violation of the A person may obtain habeas relief under § 2241 "when '[h]e is in custody in Constitution or laws or treaties of the United States."19 In addition, "[d]espite the absence of an of case law has exhaustion requirement in the statutory language of section 224 1(c)(3), a body courts to developed holding that although section 2241 establishes jurisdiction in the federal the exercise of that consider pre-trial habeas corpus petitions, federal courts should abstain from merits in the jurisdiction if the issues raised in the petition may be resolved either by trial on the state court or by other state procedures available to the petitioner."2° The courts developed this initially exhaustion requirement "to protect the state courts' opportunity to confront and resolve in the state any ... issues arising within their jurisdictions as well as to limit federal interference the state adjudicatory process."2' The requirement furthers the principle of comity by allowing have been courts the first opportunity to determine whether the petitioner's constitutional rights violated.22 As the Court noted above, Serrano is not in custody and has a writ pending in the Dickerson v. State of La., 816 F.2d 220, 224 (5th Cir. 1987) (quoting 28 U.S.C. 2254(a) and (b)) (emphasis added). 17 18 Id. (footnote omitted). 19 28 U.S.C. § 2241(c)(3). 20 Dickerson, 816 F.2d at 225. 21 Id 22 Ries v. Quarterman, 522 F.3d 517, 523 (5th Cir. 2008). § Eighth Court of Appeals. filing a petition for Accordingly, the Court finds Serrano has not met the preconditions for it should dismiss a writ of habeas corpus under either § 2254 or § 2241. It concludes, therefore, it should deny Serrano's petition for lack ofjurisdiction. Additionally, the Court concludes following orders: Serrano a certificate of appealability.23 The Court, therefore, enters the IT IS ORDERED that Serrano's petition for a writ of habeas corpus under 28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE for lack ofjurisdiction. IT IS FURTHER ORDERED that Serrano is DENIED a certificate of appealability. IT IS ALSO ORDERED that all pending motions are DENIED as moot. IT IS FINALLY ORDERED that the District Clerk shall CLOSE this case. SO ORDERED. SIGNED this day of June, 2016. JLAA#41 DAID C. G DERRAMA UNItED STATES DISTRICT JUDGE foil. § 2254 Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."); 28 U.S.C. § 2253(c)(2) a substantial (2012) ("A certificate of appealability may issue ... only if the applicant has made 149, 151(5th Cir. d showing of the denial of a constitutional right."); Lackey v. Johnson, 116 F .3 habeas corpus actions, the scope of appellate 1997) (holding that, in regard to the denial of relief in review is limited to the issues on which a certificate of appealability is granted). -523 See 28 U.S.C.
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