Elliott v. Collins
MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, dismissing with prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
November 08, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
KENDRICK LAVAR ELLIOTT,
JUDGE DENISE COLLINS,
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-3338
MEMORANDUM OPINION AND ORDER
custody at the Harris County Jail.
Elliott has filed a Petition
without bond by a state court district judge.
Elliott has also
submitted an Application to Proceed Without Prepayment of Fees
(Docket Entry No. 2).
After considering all of the pleadings and
the applicable law as required by Rule 4 of the Rules Governing
Section 2254 Cases,
the court concludes that this case must be
dismissed for the reasons explained briefly below.
Elliott is presently in custody at the Harris County Jail
pending criminal charges for failure to register as a sex offender
in cause number 1572703. 1
Elliott contends that he was wrongfully
imprisoned by Judge Denise Collins, who ordered him held without
bond for over a year in connection with another criminal case in
cause number 1499861. 2
That case, which also charged Elliott with
failure to register as a sex offender, was ultimately dismissed on
March 2 9 ,
2 01 7 . 3
Elliott appears to contend that he was
wrongfully imprisoned until the end of March 2017.
Elliott seeks relief in the form of a federal writ of habeas
prisoners who challenge the "fact or duration" of their confinement
Preiser v. Rodriguez, 93 S. Ct. 1827, 1841 (1973).
To state a claim, a habeas petitioner must demonstrate that he is
entitled to release from confinement because he is "in custody in
See Harris County District Clerk's Office website, located
http://www.hcdistrictclerk.com (last visited Nov. 3, 2017).
Petition, Docket Entry No. 1, p. 2. Because Elliott provides
no details in support of his request for relief, the court takes
judicial notice of facts articulated by him in another civil action
filed on the same day as the pending Petition.
See Elliott v.
Collins, Civil No. H-17-3336 (S.D. Tex.).
Id. at 4. Court records reflect that the charges in cause
number 1499861 were dismissed on March 29, 2017, after Elliott pled
guilty in a related case (cause number 1499673). See Harris County
hcdistrictclerk.com (last visited Nov. 3, 2017)
To the extent that Elliott challenges his confinement without
bond in cause number 1499861,
Elliott cannot state a claim for
federal habeas corpus relief because he is no longer in custody
pursuant to that case.
"The federal habeas corpus statute requires
that the applicant must be 'in custody' when the application for
habeas corpus is filed."
Carafas v. LaVallee, 88 S. Ct. 1556, 1560
(1968); see also Maleng v. Cook, 109 S. Ct. 1923, 1925 (1989)
Because Elliott does not meet this threshold requirement,
the Petition must be dismissed for failure to state a claim upon
which relief may be granted.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
certificate of appealability will not issue unless the petitioner
"a substantial showing of the denial of a constitutional
28 U.S. C.
2253 (c) (2),
which requires a petitioner to
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F. 3d 895,
set forth above,
reason would not debate whether the petitioner states a valid claim
a certificate of appealability will not
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The Application for Leave to Proceed Without
Prepayment of Fees (Docket Entry No. 2) is GRANTED.
Kendrick Lavar Elliott's Petition for a Writ of
Habeas Corpus by a Person in State Custody (Docket
Entry No. 1) is DISMISSED with prejudice.
A certificate of appealability is DENIED.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the petitioner.
SIGNED at Houston, Texas, on this 8th day of November, 2017.
UNITED STATES DISTRICT JUDGE
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