Ortega-Chavez v. Sessions
OPINION AND ORDER. The Court DISMISSES Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, without prejudice, for lack of jurisdiction. A certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 9/6/2017) (npk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
Civil Action No. 4:17-CV-696-Y
OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 filed by petitioner, Armando OrtegaChavez, a federal prisoner confined in FCI-Pollock in Pollock,
Louisiana, against William Sessions, the named Respondent. After
having considered the pleadings and relief sought by Petitioner,
the Court has concluded that the petition should be dismissed
without prejudice for lack of jurisdiction.
Factual and Procedural History
Petitioner is a Mexican citizen who had been deported and
removed from the United States following deportation proceedings
initiated in 1997 based on his 1994 Texas conviction for possession
of cocaine. (Pet. 7, ECF No. 1; Indictment, United States v.
Ortega-Chavez, Case No. 4:12-CR-248-Y, ECF No. 1.) He was arrested
in 2012 and convicted for illegal reentry in this Court in 2013. He
continues to serve his 68-month term of imprisonment. (J., United
States v. Ortega-Chavez, Case No. 4:12-CR-248-Y, ECF No. 39.) In
this habeas petition, he appears to challenge the validity of the
1997 deportation order and his resultant 2013 conviction and
sentence for illegal reentry. (Pet. 8, ECF No. 1.)
This Court has the duty to assure that it has jurisdiction
over the matters before it and may raise a jurisdictional issue sua
sponte at any time. 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). 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 a court
lacks jurisdiction over the subject matter. See FED. R. CIV. P.
The only district that may consider a habeas-corpus petition
under § 2241 is the district in which the petitioner is confined at
the time the petition is filed. Rumsfeld v. Padilla, 542 U.S. 426,
442-43 (2004); Lee v. Wetzel, 244 F.3d 370, 375 n.5 (5th Cir.
2001). Petitioner is not confined in this district nor was he
confined in this district when the petition was filed. Therefore,
this Court lacks jurisdiction over his § 2241 petition.
The Fifth Circuit has determined that a district court lacking
“discretion” to transfer the petition to the proper district. See
Lee, 244 F.3d at 373-74. Instead, the Fifth Circuit mandates that
a district court dismiss the petition without prejudice, so that
the petitioner “may file the petition in the appropriate court if
he desires.” Id. at 375. Accordingly, this Court must dismiss
Petitioner’s petition. If he desires, he may file the petition in
the United States District Court for the Western District of
Louisiana where he is confined.
For the reasons discussed, the Court DISMISSES Petitioner’s
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241,
without prejudice, for lack of jurisdiction. Because the Court
lacks jurisdiction, no ruling is made on Petitioner’s pending
motions. (Appl., ECF No. 2; Mot., ECF No. 5.)
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. A certificate of appealability may
issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under this standard, when a district court denies
habeas relief by rejecting constitutional claims on their merits,
‘the petitioner must demonstrate that reasonable jurists would find
debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498 (5th
Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When a district court dismisses a habeas petition on procedural
grounds without reaching the merits, the petitioner must show “that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). This inquiry involves two components, but a court
may deny a certificate of appealability by resolving the procedural
question only. Petitioner has not made a showing that reasonable
jurists would question this Court’s procedural ruling. Therefore,
a certificate of appealability should not issue.
SIGNED September 6, 2017.
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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