Prek v. The State of Texas

Filing 4

OPINION AND ORDER: For the reasons discussed, the Emergency Petition for Writ of Habeas Corpus Due to Need of Urgent Medical Treatment is DENIED, and this matter is DISMISSED without prejudice. (Ordered by Judge Reed C. O'Connor on 10/30/2017) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
THE STATE OF TEXAS,

v.
YAZMIN PREK on behalf of
WILBERTO PREK, ex parte.

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Civil Action No. 4:17-CV-865-O

OPINION AND ORDER
Before the Court is an Emergency Petition for Writ of Habeas Corpus Due to Need of Urgent
Medical Treatment filed by Yazmin Prek on behalf of her husband, Wilberto Prek, a pretrial detainee
confined in the Tarrant County jail. After considering the petition and relief sought, the Court has
concluded that the petition should be denied and the action dismissed without prejudice.
I. DISCUSSION
In this habeas petition, Ms. Prek asserts that her husband is awaiting trial for charges of
continuous sexual abuse of a child and aggravated sexual assault of a child. Pet. 1, ECF No. 1.
According to Ms. Prek, her husband is indigent, suffers from various mental and physical conditions,
and is currently being represented by a public defender in his state criminal proceedings.
To the extent Ms. Prek seeks injunctive relief and/or complains of the conditions of her
husband’s confinement, including the alleged deprivation of medical treatment for severe sleep
apnea, the proper vehicle for raising such claims is a civil rights action pursuant to 42 U.S.C. § 1983.
To the extent Ms. Prek seeks her husband’s release from pretrial confinement, the federal
habeas statute provides, in pertinent part, that an “[a]pplication for writ of habeas corpus shall be
in writing signed and verified by the person for whose relief it is intended or by someone acting in
his behalf.” 28 U.S.C. § 2242. This petition was filed by the wife of the person for whose relief it

is intended. In Whitmore v. Arkansas, 495 U.S. 149 (1990), the Supreme Court made clear that
standing to proceed as next friend on behalf of a prisoner “is by no means granted automatically to
whomever seeks to pursue an action on behalf of another.” Id. at 163. A party seeking to represent
a prisoner in a habeas proceeding must: (1) explain why the real party in interest cannot prosecute
the action in his own behalf; and (2) establish a significant relationship with and a true dedication
to the best interests of the real party in interest. Id. Assuming, arguendo, that Ms. Prek has
established a significant relationship with and a true dedication to the best interests of her husband
in bringing this action, there is no indication that her husband cannot prosecute the action in his own
behalf. Ms. Prek provides no documentary evidence of her husband’s mental and physical
disabilities and states that he is not at the present time mentally unstable. Pet. 3, ECF No. 1.
Further, although a state pretrial detainee is entitled to raise constitutional claims in a federal
habeas proceeding under 28 U.S.C. § 2241, he must first exhaust any and all state remedies before
seeking federal habeas relief. See Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987). Ms.
Prek neither asserts nor demonstrates that she or Mr. Prek have sought and exhausted any and all
state remedies available to them. 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. ANN. art. 11.08 (West 2015). 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) (citations omitted)).

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II. CONCLUSION
For the reasons discussed, the Emergency Petition for Writ of Habeas Corpus Due to Need
of Urgent Medical Treatment is DENIED, and this matter is DISMISSED without prejudice.
SO ORDERED on this 30th day of October, 2017.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

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