IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JAMES ROY COOKSEY §

VS. § CIVIL ACTION NO. 1:23-cv-271

PORT ARTHUR POLICE DEPARTMENT §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner James Roy Cooksey, proceeding pro se, brings this Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254.

The above-styled action was referred to the undersigned magistrate judge pursuant to 28

U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate

Judge, for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Discussion

Petitioner brings this action claiming he is “being unlawfully detained and deprived of

federally protected personal civil liberty interests.” Petitioner complains of evidence tampering, a

conspiracy to interfere with his civil rights. Petitioner also requests injunctive relief requiring the

Port Arthur Police Departmentto provide himprotection, as well as investigate alleged constitutional

violations and enforce the laws. Further, Petitioner complains that “Signals Intelligence activity is

being use for extralegal abuse of government punitive criminal-law-enforcement activity.” Finally,

Petitioner complains of the sua sponte dismissal of a previous lawsuit he brought in this court. See

Cooksey v. Cooksey, No. 1:16cv67 (E.D. Tex. July 19, 2016). A review of the docket reveals the

action was dismissed in its entirety as frivolous. Id. at Doc. #52.

Case 1:23-cv-00271-MJT-CLS Document 3 Filed 08/01/23 Page 1 of 4 PageID #: 36
Analysis

Jurisdiction

Petitioner brought this action as a Petition for Writ of Habeas Corpus and paid the $5.00

filing fee at the time of filing his Petition. 

Title 28 U.S.C. § 2241 gives the district court authority to grant a writ of habeas corpus

where a state prisoner “is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). A Petitioner satisfies the “in custody” requirement when the

challenged conviction has not fully expired when the Petitioner files his Petition. See Carafas v.

LaVallee, 391 U.S. 234, 238 (1968). A Petitioner is not “in custody” for a particular conviction,

however, when he or she “suffers no present restraint” from the challenged conviction. Maleng v.

Cook, 490 U.S. 488, 492 (1989). “Federal district courts do not have jurisdiction to entertain section

2254 actions if, at the time the petition is filed,the petitioner is not‘in custody’ under the conviction

or sentence which the petition attacks.” Hendrix v. Lynaugh, 888 F.2d 336, 337 (5th Cir. 1989)

(citing Maleng, 490 U.S. at 490-91).

In this case, however, Petitioner is not confined, instead Petitioner resides at a private

residence located in Port Arthur, Texas. Petitioner has neither alleged nor demonstrated he is in

custody for purposes of obtaining habeas relief. Accordingly, this court is without jurisdiction to

entertain Petitioner’s Petition for Writ of Habeas Corpus. In the alternative, for the reasons set forth

below, the writ of habeas corpus is not the proper avenue for relief in this action.

Nature of Action

The writ of habeas corpus is the exclusive federal remedy for claims implicating the fact or

duration of confinement. Covin v. LeBlanc, 2 F.4th 494, 497 (5th Cir. 2021) (citing Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973)). A Petition for Writ of Habeas Corpus permits a petitioner

2

Case 1:23-cv-00271-MJT-CLS Document 3 Filed 08/01/23 Page 2 of 4 PageID #: 37
to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983

provides the proper vehicle to challenge unconstitutional actions or conditions of confinement. See

Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997). As Petitioner is not in custody and only

challenges alleged unconstitutional conduct, he must pursue his claims by filing a civil rights action. 

In this case, it would not further the interests of justice to construe Petitioner’s Petition as a

civil rights action because allowing Petitioner to prosecute this action based on the payment of the

$5.00 filing fee applicable to Petitions for Writ of Habeas Corpus instead of the $402.00 filing fee

applicable to civil actions would allow Petitioner to circumvent the filing fee requirements of the

Prison Litigation Reform Act. See 28 U.S.C. § 1915. Accordingly, the Petition should be dismissed

without prejudice to Petitioner’s ability to pursue such claims by filing a separate civil action.

Recommendation

The above-styled Petition for Writ of Habeas Corpus should be dismissed without prejudice. 

Objections

Within fourteen days after being served with a copy of the magistrate judge’s Report, any

party may serve and file written objections to the findings of facts, conclusions of law and

recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. See Douglass v. United 

3

Case 1:23-cv-00271-MJT-CLS Document 3 Filed 08/01/23 Page 3 of 4 PageID #: 38
Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72.

4

___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 1st day of August, 2023.

Case 1:23-cv-00271-MJT-CLS Document 3 Filed 08/01/23 Page 4 of 4 PageID #: 39