United States District Court, N.D. Texas, Lubbock Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS
GORDON BRYANT JR. UNITED STATES MAGISTRATE JUDGE
to Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Based on the relevant findings and applicable
law, the habeas petition should be DISMISSED
without prejudice for failure to exhaust state court
remedies, and a certificate of appealability should be
August 27, 2018,  Petitioner, a detainee in the Garza County
Jail, filed this Petition for Writ of Habeas Corpus using the
form for petitions pursuant to 28 U.S.C. § 2241
(Petition). The Court ordered Petitioner to supplement his
Petition with answers to a questionnaire, which he filed on
September 10, 2018. Petitioner is detained on a charge of
theft of property in cause number 17-2936, pending in the
106th District Court of Garza County, Texas. It
appears from the face of the Petition and his responses to
the questionnaire that Petitioner has failed to exhaust
available state court remedies prior to filing his §
requesting federal habeas relief under § 2241, a
petitioner must have exhausted his claims in state court.
Dicker son v. Louisiana, 816 F.2d 220, 224 (5th Cir.
1987). Although the statutory language of § 2241 does
not contain an exhaustion requirement, courts have judicially
crafted an exhaustion doctrine, holding that "federal
courts should abstain from the exercise of that jurisdiction
if the issues raised in the petition may be resolved either
by trial on the merits in the state court or by other state
procedures available to the petitioner." Id. at
225; see also Braden v. 30th Judicial Circuit Court of
Ky., 410 U.S. 484, 489-92 (1973); Brown v.
Estelle, 530 F.2d 1280, 1284 (5th Cir. 1976); Clark
v. Anderson, No. 4:01-CV-723-Y, 2001 WL 1631538, at *3
(N.D. Tex. Dec. 14, 2001). The exhaustion doctrine applicable
to § 2241 was judicially created on federalism grounds
to protect the state courts' opportunity to resolve
initially any constitutional issues arising within their
jurisdictions as well as to limit federal interference in the
state adjudicatory process. See Clark, 2001 WL
1631538, at *3 (citing Braden, 410 U.S. at 490-91);
see generally Rose v. Lundy, 455 U.S. 509, 518
(1982) (explaining that the exhaustion requirement is
"designed to protect the state courts' role in the
enforcement of federal law and prevent disruption of state
judicial proceedings"). In Braden, the United
States Supreme Court determined that absent "special
circumstances," a pretrial detainee may not adjudicate
the merits of an affirmative defense to a state criminal
charge before a judgment of conviction has been entered.
Braden, 410 U.S. at 489. The "derailing of a
pending state proceeding by an attempt to litigate
constitutional defenses prematurely in federal court" is
not allowed. Id. at 493.
order to exhaust, a petitioner must fairly present all of his
claims to the highest available state court for review.
See Deters v. Collins, 985 F.2d 789, 795 (5th Cir.
1993) (citations omitted); Richardson v. Procunier,
762 F.2d 429, 432 (5th Cir. 1985); see also Cotton v.
Jefferson Cty., No.1:13CV267, 2013 WL 3367299, at *1-2
(E.D. Tex. July 3, 2013). In Texas, all claims must be
presented to the Texas Court of Criminal Appeals.
Procunier, 762 F.2d at 430-32. Prior to filing a
habeas petition in federal court, a Texas pretrial detainee
must present his claim to the Texas Court of Criminal
Appeals. See Id. at 432; see also Cotton,
2013 WL 3367299, at *l-2. He must first file a
pre-adjudication application for writ of habeas in the trial
court under article 11.08 of the Texas Code of Criminal
Procedure. Tex. Code Crim. P. art. 11.08 (West 2008); see
Cotton, 2013 WL 3367299, at *2. The trial court's
ruling is then "reviewable upon direct appeal to an
intermediate court of appeals (which is, in turn, subject to
discretionary review by the Texas Court of Criminal
Appeals)." Ex parte Simpson, 260 S.W.3d 172,
174 (Tex. App.-Texarkana 2008, no writ) (citations omitted);
see Cotton, 2013 WL 3367299, at *2.
it is clear from the Petition and the questionnaire that
Petitioner has not satisfied the exhaustion requirement. In
response to the question about whether he had "filed any
petitions, applications or motions from this judgment in any
court, state or federal," he answered "No."
See ECF No. 1, at 3 ¶ 10. Also, in response to
the question "have you raised this issue in a state writ
of habeas corpus or other state proceeding," he answered
"I filed the writ of habeas corpus in the
106th District Court of Garza County, Texas, it
was filed and appeared to be marked out and mailed back with
no explanations. I have not filed this writ in any other
state proceedings." See ECF No. 8, at 1. Based
upon his answers to these questions, the Court finds that
Petitioner has not properly exhausted his claims in state
court, and he has not shown that a ruling from this Court
would not preempt the state court from performing its proper
CERTIFICATE OF APPEALABILITY
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253. Fed. R. App. P. 22(b).
Rule 11 of the Rules Governing Section 2254 Proceedings now
requires that the Court "must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant." Rules Governing Section 2254
Proceedings in The United States District Courts, Rule 11(a)
(December 1, 2009). The COA may issue "only if the
applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C.A. § 2253(c)(2)
(West 2006). A petitioner satisfies this standard by showing
"that jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists of reason could conclude the issues presented are
adequate to deserve encouragement to proceed further."
Miller-El v. Cockrell, 537 U.S. 322, 326 (2003)
(citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Pre-trial detainees challenging their state
detention under 28 U.S.C. § 2241 must obtain a
certificate of appealability. Stringer v. Williams,
161 F.3d 259, 262 (5th Cir. 1998).
on the record, Petitioner has not shown that reasonable
jurists would question the Court's acceptance of this
recommendation, and a certificate of appealability should not
issue. See Fed. R. App. P. 22(b); see also
28 U.S.C.A. § 2253(c)(2) (West 2006).
Petition filed under 28 U.S.C. § 2241 should be
DISMISSED without prejudice for failure to
properly exhaust state court remedies, and a certificate of
appealability should not issue.