United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'Conner United States District Judge.
the Court is Daniel Harvey's petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2241. Pet.
1-6, ECF No. 1. After preliminary review of the pleading and
the applicable law, the Court DISMISSES Harvey's §
2241 petition for lack of jurisdiction.
Harvey initiated this case with the filing of a document in
which he contends that he is entitled to relief under 28
U.S.C. § 2241. Pet. 2, ECF No. 1. Harvey writes
This is to be construed as a petition for habeas corpus
(which is my right when I'm imprisoned or circumstances
are the same as being imprisoned which is the case here). 28
U.S. Code 2241. The abnormal circumstances under which
I'm filing this petition as a non-prisoner has to do with
various factors (but my circumstances are ths same as a
prisoner). Below I will furnish a hypothetical situation in
which will provide the court with my reasoning and my need to
seek relief (asylum) in an American allied country because
currently the United States of America does not regulate,
through taxation and other legislative means this behavior
that America's citizens at work, home, and otherwise has
a motive to gain income (enslave) off of other less fortunate
citizens and is very wide-spread (in every state and city
that I have ever been in and probably throughout the entire
united states of America) throughout America and American
life and is within every aspect of American life. Including
and not limited to employment, personal relationships, at
school, regarding child custody, marriage and every
Pet. 2, ECF No. 1. Harvey also writes that those responsible
for his “imprisonment” include: the
“president of the united states because he is the head
of the executive branch of government that is responsible for
foreign policy, ” [and] “the head of the judicial
branch of government the chief justice of the supreme court
and lastly the congressional majority leaders in
congress.” Pet. 5, ECF No. 1. Harvey listed as his
address a street address in Saginaw, Texas. Pet. 1, ECF No.
Subject Matter Jurisdiction
Court has the duty to assure that it has jurisdiction over
the matters before it. See MCG, Inc. v. Great W. Energy
Corp., 896 F.2d 170, 173 (5th Cir. 1990). Federal Rule
of Civil Procedure 12(h)(3) requires that federal courts
dismiss an action whenever it appears by suggestion of the
parties or otherwise that the court lacks jurisdiction over
the subject matter. Fed.R.Civ.P. 12(h)(3); see Merlen v.
Holder, 667 F.3d 538, 539 (5th Cir. 2011)
(“Dismissal is mandatory if the district court lacks
subject matter jurisdiction”) (citation omitted).
Harvey's petition under 28 U.S.C. § 2241 is
insufficient to confer federal jurisdiction.
U.S.C. § 2241 authorizes federal courts to grant writs
of habeas corpus when a prisoner is “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c). Custody is a
necessary pre-requisite to habeas jurisdiction under 28
U.S.C. § 2241. Romo-Briones v. Ridge,
No.3:04-cv-524-M, 2004 WL 2645553, at * 5 (N.D. Tex. Nov. 18,
2004), R & R adopted, 2004 WL 2988541 (Dec. 22,
2004). The sole function of the writ of habeas corpus is to
grant relief from unlawful imprisonment or custody.
Id. “Absent custody by the authority against
whom relief is sought, jurisdiction usually will not lie to
grant the requested writ.” See Prieto v.
Gluch, 913 F.2d 1159, 1162-63 (6th Cir. 1990) (quoting
Campillo v. Sullivan, 833 F.2d 593, 595 (8th Cir.
1988)). Thus, a person seeking a writ of habeas corpus must
be “in custody” at the time the habeas petition
as the petitioner, has the burden to show that this Court has
jurisdiction over this matter. See Howery v. Allstate
Ins. Co. 243 F.3d 912, 916 (5th Cir. 2001). But at the
time of the filing of the instant § 2241 petition,
Harvey resided in Saginaw, Texas. Pet. 1, ECF No. 1. Harvey
does not actually challenge imprisonment or custody in any
prison, jail, or detention facility, he does not challenge
any order causing him to be subject to future detention, and
he does not seek relief from any imprisonment or from any
such order. Pet. 2-5, ECF No. 1. Thus, as Harvey is not in
custody for purposes of § 2241, the petition must be
dismissed for lack of jurisdiction.
CONCLUSION and ORDER
therefore ORDERED that Daniel Harvey's petition for
relief under 28 U.S.C. § 2241 is ...