United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE.
petitioner, Kendrick Lavar Elliott, is currently in custody
at the Harris County Jail. Elliott has filed a Petition for a
Writ of Habeas Corpus by a Person in State Custody
("Petition") (Docket Entry No. 1), challenging his
detention without bond by a state court district judge.
Elliott has also submitted an Application to Proceed Without
Prepayment of Fees (Docket Entry No. 2). After considering
all of the pleadings and the applicable law as required by
Rule 4 of the Rules Governing Section 2254 Cases, the court
concludes that this case must be dismissed for the reasons
explained briefly below.
is presently in custody at the Harris County Jail pending
criminal charges for failure to register as a sex offender in
cause number 1572703. Elliott contends that he was
wrongfully-imprisoned by Judge Denise Collins, who ordered
him held without bond for over a year in connection with
another criminal case in cause number 1499861. That case, which
also charged Elliott with failure to register as a sex
offender, was ultimately dismissed on March 29,
2017. Thus, Elliott appears to contend that he
was wrongfully imprisoned until the end of March 2017.
seeks relief in the form of a federal writ of habeas corpus.
A writ of habeas corpus provides a remedy only for prisoners
who challenge the "fact or duration" of their
confinement and seek "immediate release or a speedier
release from that imprisonment." Preiser v.
Rodriguez, 93 S.Ct. 1827, 1841 (1973). To state a claim,
a habeas petitioner must demonstrate that he is entitled to
release from confinement because he is "in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2241(c).
extent that Elliott challenges his confinement without bond
in cause number 1499861, Elliott cannot state a claim for
federal habeas corpus relief because he is no longer in
custody pursuant to that case. "The federal habeas
corpus statute requires that the applicant must be 'in
custody' when the application for habeas corpus is
filed." Carafas v. LaVallee, 88 S.Ct. 1556,
1560 (1968); see also Maleng v. Cook, 109 S.Ct.
1923, 1925 (1989) (per curiam). Because Elliott does not meet
this threshold requirement, the Petition must be dismissed
for failure to state a claim upon which relief may be
Certificate of Appealability
of the Rules Governing Section 2254 Cases requires a district
court to issue or deny a certificate of appealability when
entering a final order that is adverse to the petitioner. A
certificate of appealability will not issue unless the
petitioner makes "a substantial showing of the denial of
a constitutional right, " 28 U.S.C. § 2253(c)(2),
which requires a petitioner to demonstrate "that
'reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.'" Tennard v. Dretke, 124 S.Ct. 2562,
2565 (2004) (quoting Slack v. McDaniel, 120 S.Ct.
1595, 1604 (2000)).
district court may deny a certificate of appealability,
sua sponte, without requiring further briefing or
argument. See Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000). For reasons set forth above, this court
concludes that jurists of reason would not debate whether the
petitioner states a valid claim for relief. Therefore, a
certificate of appealability will not issue.
Conclusion and Order
on the foregoing, the court ORDERS as
1. The Application for Leave to Proceed Without Prepayment of
Fees (Docket Entry No. 2) is GRANTED.
2. Kendrick Lavar Elliott's Petition for a Writ of Habeas
Corpus by a Person in State Custody (Docket Entry No. 1) is