Ex parte Massey, No. EP-70-CA-1.

• Court: United States District Courts. 5th Circuit. Western District of Texas
• Writing for the Court: Joseph J. Rey, Sr., El Paso, Tex., for petitioner
• Citation: 307 F. Supp. 709
• Decision Date: 06 January 1970
• Docket Number: No. EP-70-CA-1.
• Parties: Ex parte William C. MASSEY.

307 F. Supp. 709

Ex parte William C. MASSEY.

No. EP-70-CA-1.

United States District Court W. D. Texas, El Paso Division.

January 6, 1970.

Joseph J. Rey, Sr., El Paso, Tex., for petitioner.

Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

SUTTLE, District Judge.

Petitioner was taken into custody by the F.B.I. on December 5, 1969, upon his entry into this country from Juarez, Mexico, pursuant to a complaint issued the same day by a United States Commissioner, Houston, Texas, charging a violation of 18 U.S.C. § 2313. He appeared before United States Commissioner Fred J. Morton, El Paso, Texas, on December 6, 1969, pursuant to Rule 5(a), F.R.Cr.P., and was informed in accordance with Rule 5(b). Temporary bail was set at $5,000.00 and petitioner was committed to the El Paso County Jail pending further proceedings.¹ On December 8, 1969, a new complaint was issued by the United States Commissioner in Corpus Christi, Texas, where the alleged offense occurred. On December 9, 1969, petitioner again appeared before Commissioner Morton pursuant to Rule 5, F.R.Cr.P., in regard to this new complaint. In accordance with Rule 5(c), preliminary hearing was held on December 23, 1969, at which petitioner was represented by employed counsel. Bail was reduced to $1,000.00 and the Commissioner found that there was probable cause to believe that an offense had been

307 F. Supp. 710

committed and that the petitioner committed it. Petitioner was ordered held to answer in the United States District Court for the Southern District of Texas, in accordance with Rule 40(a), F.R. Cr.P.² On January 2, 1970, the instant petition was filed seeking petitioner's release from custody on the grounds that the "complaint is insufficient in Law and there is no evidence to sustain it."

A Commissioner's determination of probable cause and order binding a defendant over to answer criminal charges is reviewable only through a motion to dismiss the commitment addressed to the District Court in which the charges are pending or in whose jurisdiction the alleged offense was committed, and not an application for habeas corpus.³ While habeas corpus is apparently available if the defendant is entitled to removal proceedings,⁴ such is not the case here. Since petitioner was arrested in a district in the same state in which he is to answer, removal proceedings are not required.⁵ Furthermore, an examination of the files and...