United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE.
Alberto Ambrosio (SPN #02353928), a pretrial detainee
currently in the custody of the Harris County Jail under
felony indictment for aggravated sexual assault, filed this
petition for a writ of habeas corpus under 28 U.S.C. §
2241, challenging his detention under an Immigration and
Customs Enforcement (“ICE”) hold that he contends
prevents him from being released on bond. See Docket
Entry No. 1 at 6. Petitioner proceeds pro se and has
submitted an application to proceed in forma
pauperis. After reviewing the pleadings and the
applicable law, the Court concludes that the petition must be
dismissed without prejudice for the reasons set forth briefly
records reflect that Petitioner is awaiting trial in the
337th Harris County Judicial District Court for aggravated
sexual assault in cause number 15531660. Petitioner has
been confined since May 28, 2017.
petition for habeas corpus, Petitioner asserts that his
constitutional rights are being violated because the ICE hold
prevents him from being released on bond. See Docket
Entry No. 1 at 6. Petitioner discloses that he has not filed
grievances or sought relief in state court to address the
above-mentioned bond issue relating to the ICE hold. See
Id. at 2.
EXHAUSTION OF REMEDIES
pretrial detainee may seek a federal writ of habeas corpus
under 28 U.S.C. § 2241 only if the following two
prerequisites are met: (1) the petitioner must be in custody
for purposes of § 2241(c); and (2) the petitioner must
have exhausted available state remedies. See Dickerson v.
Louisiana, 816 F.2d 220, 224 (5th Cir. 1987); see
also Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484, 489-92 (1973). Although Petitioner meets the
first prerequisite for review because he alleges he is
presently confined in Harris County Jail, he does not meet
the second criteria because it is apparent from the pleadings
that he has not exhausted available state court remedies
before seeking relief in federal court.
well established that a state prisoner “must exhaust
all available state remedies before he may obtain federal
habeas corpus relief.” Sones v. Hargett, 61
F.3d 410, 414 (5th Cir. 1995). The exhaustion requirement
“is not jurisdictional, but reflects a policy of
federal-state comity designed to give the State an initial
opportunity to pass upon and correct alleged violations of
its prisoners' federal rights.” Moore v.
Quarterman, 454 F.3d 484, 490-91 (5th Cir. 2006)
(citations omitted). “The purpose of exhaustion
‘is not to create a procedural hurdle on the path to
federal habeas court, but to channel claims into an
appropriate forum, where meritorious claims may be vindicated
and unfounded litigation obviated before resort to federal
court.'” Ruiz v. Quarterman, 460 F.3d 638,
642-643 (5th Cir. 2006) (quoting Keeney v.
Tamayo-Reyes, 504 U.S. 1, 10 (1992)). Exceptions exist
only where there is an absence of available State corrective
process or circumstances exist that render such process
ineffective to protect the rights of the applicant.
See 28 U.S.C. § 2254(b)(1)(B). A reviewing
court may raise a petitioner's failure to exhaust sua
sponte. Tigner v. Cockrell, 264 F.3d 521, 526
(5th Cir. 2001).
exhaust remedies in Texas, a petitioner must present his
claims to the Texas Court of Criminal Appeals by filing an
appeal followed by a petition for discretionary review or by
filing an application for a writ of habeas corpus. See
Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990)
(exhaustion may be accomplished directly in a petition for
discretionary review or collaterally in a habeas corpus
petition). In the pre-conviction context, a Texas prisoner
confined after a felony indictment may file an application
for writ of habeas corpus pursuant to Article 11.08 of the
Texas Code of Criminal Procedure with the judge of the court
in which he is indicted. See Tex. Code Crim. Proc.
§ 11.08 (Vernon 2017). If the trial court denies habeas
relief under Article 11.08, the applicant's remedy is to
take a direct appeal to an intermediate appellate court and
then petition for discretionary review by the Texas Court of
Criminal Appeals. See, e.g., Ex parte Twyman, 716
S.W.2d 951, 952 (Tex. Crim. App. 1986) (citing Ex parte
Payne, 618 S.W.2d 380, 382 n. 5 (Tex. Crim. App. 1981)
discloses that he has not filed motions to address his bond
issues in state court and that he has not appealed any state
rulings by seeking review by the Texas Court of Criminal
Appeals. See Docket Entry No. 1 at 6-8. Thus,
Petitioner has not exhausted available state court and
administrative remedies, and Petitioner does not otherwise
show that exceptional circumstances are present or that
federal court intervention at this stage is warranted.
See Younger v. Harris, 401 U.S. 37, 43-45 (1971).
Accordingly, the pending federal habeas petition must be
dismissed without prejudice for lack of exhaustion.
CERTIFICATE OF APPEALABILITY
certificate of appealability from a habeas corpus proceeding
will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. §2253(c)(2). This standard
“includes showing that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotations and citations omitted). Stated
differently, the petitioner “must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Id.; Beazley v. Johnson, 242 F.3d 248,
263 (5th Cir. 2001). On the other hand, when denial of relief
is based on procedural grounds, the petitioner must not only
show that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right, ” but also that they “would
find it debatable whether the district court was correct in
its procedural ruling.” Beazley, 242 F.3d at
263 (quoting Slack, 529 U.S. at 484); see also
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).
A district court may deny a certificate of appealability,
sua sponte, without requiring further briefing or
argument. Alexander v. Johnson, 211 F.3d 895, 898
(5th Cir. 2000).
reasons set forth in the Memorandum and Order, the Court has
determined that petitioner has not made a showing that
reasonable jurists could disagree regarding the Court's
procedural ruling. Therefore, a certificate of appealability
from this decision will not issue.