HAB54\R&R\COX-INS.DNY:3

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

DERVAN VALENTINE COX, §

§

Petitioner, §

§

v. § 2:04-CV-0183

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DENY PETITION

Petitioner DERVAN VALENTINE COX is presently confined in the Texas Department

of Criminal Justice (“TDCJ”) pursuant to a fifteen-year sentence assessed on or about March 13,

2002, out of the 232nd Judicial District Court, Harris County, Texas. Petitioner is serving this

sentence after having been convicted of the second degree felony of prohibited sexual conduct.

Petitioner COX initiated this action by filing, on July 15, 2004, a pleading entitled

“Petitioner’s Motion for Expedited Removal Proceeding Under I.N.A. § 238(A)(1) and Title 8

U.S.C. § 1228(A)(1).” By this pleading, petitioner requests that an Order issue directing

petitioner’s release from the Texas Department of Criminal Justice-Correctional Institutions

Division, and ordering his immediate transfer to the United States Immigration and

Naturalization Service (“INS”) for deportation.

After review of the pleadings submitted by petitioner COX, it is clear that while he does

seek immediate deportation from the United States to his home country of the United Kingdom,

 

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he must first obtain and is primarily seeking release from TDCJ-ID. Therefore, the Clerk

appropriately designated this case as a habeas corpus action by an individual serving a sentence

imposed by the state courts. The Clerk is ORDERED to designate Douglas Dretke, Director,

Texas Department of Criminal Justice, Correctional Institutions Division, as respondent as

reflected in this Report and Recommendation.

I.

EXHAUSTION

Petitioner has not shown he has exhausted available state court remedies in seeking his

release from state custody. This Court may, however, deny an unexhausted habeas petition. See

28 U.S.C. § 2254(b)(2). It is the opinion of the Court that petitioner is not entitled to any relief. 

Therefore, this case should be heard rather than dismissed for failure to exhaust state court

remedies.

II.

MERITS

Other than his desire to avoid serving the fifteen (15) year sentence, petitioner has

provided the Court with no legal basis that he should immediately be released from TDCJ, nor

has he cited any legal authority authorizing this Court to order his immediate release from TDCJ. 

Petitioner has not challenged his underlying conviction and sentence in any manner. He has

been convicted and is now obligated to serve his sentence in TDCJ unless Texas authorities

choose to release him by granting parole or some other form of conditional release. Since

petitioner has failed to provide any legal basis justifying his release from the penitentiary, he is

not entitled to relief.

Further, even if this Court were to construe his petition as a request that the federal

 

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immigration authorities immediately take COX into custody and deport him to the United

Kingdom, petitioner has failed to provide a legal basis for such an action, nor has he shown that

he exhausted administrative remedies by requesting such action by the Immigration and

Naturalization Service, or their successor agency. Further, Title 8 U.S.C. § 1231(a)(4)(A)

provides that the Attorney General may not remove an alien sentenced to imprisonment until the

alien is released from imprisonment. Lastly, any request by COX for this Court to order INS to

immediately deport him is not ripe for adjudication unless and until COX is actually released

from TDCJ and is in the custody of federal immigration officials.

III.

RECOMMENDATION

Based upon the foregoing, it is the opinion and finding of the undersigned United States

Magistrate Judge that the petition for writ of habeas corpus filed by petitioner DERVAN

VALENTINE COX be DENIED.

IV.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and 

Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 29th day of November 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

 

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* NOTICE OF RIGHT TO OBJECT*

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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