Hart v. Tarrant County Probate Court No. 1
Filing
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OPINION AND ORDER: The Court DISMISSES Petitioners petition for a writ of habeas corpus for lack of jurisdiction. Further, for the reasons discussed, the Court DENIES a certificate of appealability. Petitioners application to proceed without prepayment of fees or costs is DENIED. (Ordered by Judge Terry R Means on 7/31/2014) (srs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
IN RE LINDA JANE HART,
Petitioner,
V.
TARRANT COUNTY PROBATE COURT
NO. 1,
Respondent.
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Civil Action No. 4:14-CV-590-Y
OPINION AND ORDER
Before the Court is Petitioner Linda Jane Hart’s second
purported petition for writ of habeas corpus filed in this Court.
After having considered the petition and relief sought by
Petitioner, the Court has concluded that the petition should be
summarily dismissed for lack of jurisdiction.
I.
Factual and Procedural History
Petitioner is an incapacitated adult.
probate
and
guardianship
matters.
This case involves
Specifically,
Petitioner
asserts—
The guardian ad litem, attorney ad litem, and
temporary guardian for my estate appointed by Judge King
Tarrant County Probate Court #1 had conflicts of interest
and now have conflicts of interest. It is my belief that
at the time of their appointments each had business
associates or associations for whom the real party in
interest is legally related to me.
These conflicts
cannot be waived by or for me under the laws of the State
of TX. Conflicts continue today. Moreover the need for
a guardianship is over and has been for over one month.
The court has jurisdiction because the “estate”
consists of property and debts in Texas, Oklahoma and
other states and because consistent and persistent
illegal action by a court in any state is addressed in
federal court.
Immediate, emergency action by this court is
necessary because the appointed persons have not provided
living expenses adequate to meet my needs. The guardians
have not paid bills, particularly electricity, or
adequate funds for basic necessities, including food,
medical, transportation.
I beg the court to overlook my not raising this
issue with the first writ however I was unaware of this
issue until about a week ago. That writ is on its way to
the Court of Appeals for the Fifth Circuit, hopefully.
Pet. 1-2, ECF No. 1.
II.
Title
28,
United
State
Discussion
Code,
section
2243
authorizes
a
district court to summarily dismiss a frivolous habeas-corpus
petition prior to any answer or other pleading by the respondent.
Therefore, no service has issued upon Respondent.
Petitioner was previously advised that this Court has the duty
to assure that it has jurisdiction over the matters before it.
See
Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th Cir.
1999); MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th
Cir. 1990).
Generally, for this court to have subject-matter
jurisdiction over a claim under the federal habeas statutes, the
petitioner must be “in custody” pursuant to some government action
in violation of the Constitution or laws of the United States.
U.S.C. §§ 2254(a) & 2241(c)(3).
28
A federal court lacks subject-
2
matter jurisdiction to entertain a habeas action if, at the time
the habeas petition is filed, the petitioner is not “in custody.”
Petitioner is not in the custody of the state but instead resides
at her home in Benbrook, Texas.
See Sarhan v. Rothenberg, No. 07-
22818-CIV, 2008 WL 2474645, at * (S.D.Fla. June 17, 2008); Jones v.
Social Sec. Admin., No. CIV S-06-1681-CMK,
2007 WL 806628, at *2
(E.D.Cal. Mar. 15, 2007), cert. denied, 555 U.S. 889 (2008);
Lipford
v.
(N.D.Ohio
Ware,
June
No.
29,
1:06-CV-01420,
2006).
2006
Furthermore,
WL
1805567,
federal
generally precluded from handling probate matters.
at
courts
*1
are
Marshall v.
Marshall, 547 U.S. 293, 311-12 (2006); Lehman v. Lycoming County
Children’s Serv. Agency, 458 U.S. 502, 515-16 (1982); Lepard v. NBD
Bank, 384 F.3d 232, 237 (6th Cir. 2004); Hemon v. Office of Public
Guardian, 878 F.2d 13, 14-15 (1st Cir. 1989).
For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus for lack of jurisdiction.
Further, for the reasons discussed, the Court DENIES a certificate
of appealability.
Petitioner’s application to proceed without
prepayment of fees or costs is DENIED.
SIGNED July 31, 2014.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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