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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

DIVISION

BLAS DE LEON HERNANDEZ,

 Petitioner,

vs.

WILLIAM BARR, U.S. ATTORNEY 

GENERAL; CHAD WOLF, ACTING 

SECRETARY, DEPARTMENT OF 

HOMELAND SECURITY; JOSE M. 

CORREA, SR., FIELD OFFICE 

DIRECTOR, U.S. IMMIGRATION AND 

CUSTOMS ENFORCEMENT; 

REYNALDO CASTRO, WARDEN, 

SOUTH TEXAS DETENTION 

COMPLEX,

 Respondents.

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5-20-CV-00602-FB-RBF

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery:

This Report and Recommendation concerns a § 2241 Petition for Writ of Habeas Corpus, 

see Dkt. Nos. 1, and the Respondents’ corresponding Motion to Dismiss, see Dkt. Nos. 8 (filed 

under seal) & 13 (unsealed version for the public record). The Response, Dkt. No. 9, and Reply

to the Motion to Dismiss, Dkt. No. 11, are also before the Court, as are additional associated 

briefs filed by the parties in response to an Order of the Court requesting them, see Dkt. Nos. 15 

(Order), 17 (Petitioner’s Response to Court’s Order), 19 (Respondents’ Reply). All pretrial 

matters have been referred for resolution pursuant to Rules CV-72 and 1 of Appendix C to the 

Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 

2. Authority to enter this Order stems from 28 U.S.C. § 636(b).
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For the reasons discussed below, Respondents’ Motion to Dismiss, Dkt. Nos. 8 (sealed 

version) & 13 (version for the public record), should be GRANTED, and this habeas original 

proceeding should be dismissed for lack of jurisdiction and failure to state claim on which relief 

may be granted.

Background

Petitioner Blas De Leon Hernandez (hereinafter “De Leon”) is a Mexican national and 

citizen who challenges the lawfulness of his continued immigration detention at the South Texas 

Detention Complex in Pearsall, Texas during the ongoing COVID-19 pandemic. See Dkt. No. 1. 

De Leon has been in detention for approximately 36 months. He urges a violation of his due 

process rights based on the alleged “failure to provide protections from COVID-19.” Id. at 2; 

Dkt. No. 17 at 3 (“Petitioner alleges in many ways that Respondents violate his constitutional 

rights simply by keeping him in custody during this pandemic, regardless of the conditions 

under their control.”). Citing his susceptibility to COVID-19 as well as the alleged risks of 

contracting COVID-19 inherent in a custodial environment, De Leon seeks his immediate 

release from custody as well as other related relief. See Dkt. No. 1 at 31. To be clear, it is the 

fact that De Leon is allegedly at risk to contract COVID-19 while detained that forms the basis 

for his request for relief; he does not attack the reason or justification for his detention but rather 

the fact that he is detained in a manner that he believes exposes him to an unacceptable risk of 

contracting COVID-19. See Dkt. No. 9 (“Petitioner properly brings his claim for release from

immigration detention because of the COVID-19 pandemic under the habeas statute.”).

On December 2, 2020, the Court issued a Show Cause Order. The Order explained that a 

similar case involving similar claims had recently been dismissed by the District Court in a case 

styled, Reyes Gaona v. U.S. Dep’t of Homeland Sec’y, No. 5:20-CV-00473-FB (W.D. Tex. 
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dismissed Oct. 22, 2020), Dkt. Nos. 47, 55, & 57. In Reyes Gaona, the Report and 

Recommendation of the Magistrate Judge, ultimately adopted by the District Court, noted that 

“although Petitioners . . . assert they are challenging the fact and duration of their detention, not 

their conditions of confinement, their claims in fact ultimately do challenge the conditions of 

their confinement.” Id. at Dkt. No. 47 (quotation omitted). Conditions-of-confinement claims, 

the Gaona Reyes Report and Recommendation explained, are not cognizable in habeas and 

instead must be brought as a civil rights action. Id. at *4-*5. Accordingly, the Show Cause 

Order issued in the present case directed Petitioner to show cause why his case should not be 

dismissed for lack of subject matter jurisdiction and for failure to state a claim, for materially 

the same reasons as those motivating the District Court’s dismissal in Reyes Gaona.

Analysis

As in Reyes Gaona, De Leon urges here that it is the fact of his detention and not the 

conditions of his conferment that he challenges. But just as in Reyes Gaona, De Leon’s claims 

and arguments all boil down to challenges to the conditions of his confinement; he challenges 

that he is confined during the COVID-19 pandemic and complains there are insufficient 

measures available to protect against contracting COVID-19. See Dkt. No. 17 at 3 (“Mr. De 

Leon does not challenge the conditions of his confinement, nor does he seek improvement to the 

conditions under which he is being held. Instead, he challenges the fact that he is confined at all

in a detention center where the very fact of his detention exposes him to a deadly, airborne 

virus, which has now mutated and is 50-70 percent more transmissible.”). He does not challenge 

the authority under which he is detained. “Habeas,” however, “is meant to restore liberty to 

those individuals whom the Government lacked the authority to imprison or detain in the first 

instance.” Francois v. Garcia, No. 5:20-CV-218, 2020 WL 7868101, at *3 (S.D. Tex. Dec. 24, 
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2020) (citing Boumediene v. Bush, 553 U.S. 723, 779 (2008) (“We do consider it 

uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a 

meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous 

application or interpretation’ of relevant law.” (citation omitted))).

In short, De Leon urges a conditions-of-confinement claim, no matter how he styles or 

artfully pleads it. Similarly, the analysis and conclusion are not altered by De Leon’s 

protestations that only release from custody can remedy the harm he is suffering. “The fact that 

Petitioner[s] demand[s] release can’t and doesn’t” by itself “convert [his] conditions-ofconfinement claims into a proper habeas request.” Reyes Gaona v. U.S. Dep’t of Homeland 

Sec’y, No. 5:20-CV-00473-FB, at *6 (Dkt. No. 47).

De Leon’s reliance on Cheek v. Warden of Fed. Med. Ctr.,___ F. App’x ___, 2020 WL 

6938364 (5th Cir. Nov. 24, 2020) (per curiam) is misplaced. Cheek is not a binding decision. A 

recent discussion of Cheek in the Francois decision from the Southern District of Texas assists

in confirming Cheek’s negligible role in the analysis here:

Cheek offered little by way of analysis and did not discuss how, if at all, finding 

subject matter jurisdiction over conditions of confinement claims raised in habeas 

comported with this circuit’s controlling precedent.

No. 5:20-CV-218, 2020 WL 7868101, at *3. In a footnote, Francois further places Cheek in its 

proper context:

Cheek also refrained from mentioning the many district courts within this circuit 

that have concluded that they lack subject matter jurisdiction over conditions of 

confinement claims raised in habeas. See, e.g., Nel v. Cole, 2020 WL 6535787, at 

*2 (W.D. Tex. Oct. 31, 2020) (dismissing a § 2241 petition for want of subject 

matter jurisdiction because the petition challenged conditions of confinement); 

Brown v. McConnell, 2020 WL 6051690, at *2 (W.D. La. Sept. 24, 2020) (same); 

Moore v. Lacy, 2020 WL 5797708, at *2 (E.D. Tex. Aug. 17, 2020) (same); 

Cureno Hernandez v. Mora, 467 F.Supp.3d 454 (N.D. Tex. 2020) (same); 

Beswick v. Barr, 2020 WL 3520312, at *2 (S.D. Miss. June 29, 2020) (same); 
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Sacal-Micha v. Longoria (Sacal-Micha II), 2020 WL 1815691, at *3 (S.D. Tex. 

Apr. 9, 2020) (same).

Id. at n.4.

And yet further discussion in Francois drives home the point that Cheek does not provide 

a reliable or binding rubric by which to determine the Court’s subject matter jurisdiction in 

COVID-19 cases invoking habeas jurisdiction:

The Fifth Circuit’s decision in Cook v. Hanberry, 596 F.2d 658 (5th Cir. 1979), is 

instructive. The Hanberry court concluded that even if a petitioner’s allegations of 

mistreatment amounted to cruel and unusual punishment in violation of the Eighth 

Amendment, the petitioner would still not be entitled to release from prison 

through a habeas petition. Hanberry, 596 F.2d at 660. If an Eighth Amendment 

violation does not constitute the “fact” of detention, properly challengeable under 

habeas, then Petitioner’s claims are likewise jurisdictionally barred. See Lineberry 

v. United States, 380 F. App’x. 452, 453 (5th Cir. 2010) (concluding that a 

prisoner’s cruel and unusual punishment claim, even if proven true, was not 

cognizable as a habeas petition); Spencer v. Bragg, 310 F. App’x 678, 679 (5th 

Cir. 2009) (finding that petitioner's claims of exposure to asbestos, lack of proper 

medical treatment, retaliation, and loss of legal notes were not cognizable as a 

habeas petition).

Id. at *4.

In the universe of nonbinding authorities from which the Court can receive guidance on 

habeas jurisdiction, the far better guides here are Francios and the overwhelming majority of 

other district court decisions in this circuit that have persuasively followed binding Fifth Circuit 

precedent to conclude that claims like De Leon’s are in reality conditions-of-confinement claims 

not cognizable in habeas. See Francois, No. 5:20-CV-218, 2020 WL 7868101, at n.4 (citing 

cases); Reyes Gaona, No. 5:20-CV-00473-FB, at n.5 (Dkt. No. 47) (same); see also Dkt. No. 19 

at n.3 (same).

Finally, even were De Leon’s claims cognizable in habeas, they would not state a claim 

upon which relief could be granted or over which the Court could exercise jurisdiction because 

they complain of a discretionary parole decision. See, e.g., Cheek, 2020 WL 6938364, at *3. 
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Conclusion and Recommendation

For the reasons discussed above, it is recommended that Respondents’ Motion to 

Dismiss, Dkt. Nos. 8 (sealed version) & 13 (version for the public record), should be 

GRANTED, and that this habeas original proceeding should be dismissed for lack of 

jurisdiction and failure to state claim on which relief may be granted.

Having considered and acted upon all matters for which the above-entitled and numbered 

case was referred, it is ORDERED that the above-entitled and numbered case is RETURNED

to the District Court for all purposes.

Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on 

all parties by either (1) electronic transmittal to all parties represented by attorneys registered as 

a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt 

requested, to those not registered. Written objections to this report and recommendation must be 

filed within fourteen (14) days after being served with a copy of same, unless this time period is 

modified by the district court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. The objecting party 

shall file the objections with the Clerk of the Court and serve the objections on all other parties. 

A party filing objections must specifically identify those findings, conclusions, or 

recommendations to which objections are being made and the basis for such objections; the 

district court need not consider frivolous, conclusory, or general objections. A party’s failure to 

file written objections to the proposed findings, conclusions, and recommendations contained in 

this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 

474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). 

Additionally, failure to timely file written objections to the proposed findings, conclusions, and 
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recommendations contained in this report and recommendation shall bar the aggrieved party, 

except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual

findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. 

Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

IT IS SO ORDERED. 

SIGNED this 10th day of February, 2021.

RICHARD B. FARRER

UNITED STATES MAGISTRATE JUDGE