United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
VANESSA D. GILMORE UNITED STATES DISTRICT JUDGE
Franklin filed a federal petition for a writ of habeas
corpus. The threshold issue is whether Franklin's federal
petition is subject to dismissal for nonexhaustion.
research reveals that on September 30, 2019, Franklin was
arrested for the felony offense of evading arrest/detention,
second offender. (Cause Number 1648194). Franklin complains
that he never received a probable cause hearing. He also
complains that his criminal trial date was reset without
notice and outside his presence.
complains that he is being illegally detained. Complaining of
illegal charges and improper delays, Franklin seeks his
immediate discharge from custody. The Court must consider
whether Franklin may seek pre-trial habeas relief on this
claim. A petitioner may not seek pre-trial habeas relief
under 28 U.S.C. § 2254. "[T]hat section applies
only to post-trial situations and affords relief to a
petitioner 'in custody pursuant to the judgment of a
state court.'" Dickerson v. Louisiana,
O:\RAOWDG\2019\19-4934.a01 .wpd 816 F.2d 220, 224 (5th Cir.
1987) (quoting 28 U.S.C. § 2254(a) and (b)). Pre-trial
petitions are cognizable under 28 U.S.C. § 2241,
"which applies to persons in custody regardless of
whether final judgment has been rendered and regardless of
the present status of the case pending against him."
Dickerson, 816 F.2d at 224; see also Braden v.
30th Judicial Circuit Court of Ky., 410 U.S. 484
(1973).' Therefore, Franklin's request for speedy
trial relief is construed as a claim for pre-trial habeas
relief pursuant to 28 U.S.C. § 2241(c).
habeas relief is available only to enforce a state's
obligation to bring a defendant promptly to trial, not to
adjudicate the merits of a speedy trial claim under the Sixth
Amendment and bar the state from proceeding to trial.
Dickerson, 816 F.2d at 224. To be eligible for
pre-trial habeas relief pursuant to 28 U.S.C. § 2241, a
petitioner must be "in custody" and must have
exhausted his available state remedies. Braden, 410
U.S. at 488-89; Dickerson, 816 F.2d at 224. It is
only in the post-trial setting that exhaustion is mandated by
statute. Compare 28 U.S.C. § 2254(b),
with 28 U.S.C. § 2241(c)(3). Despite the
absence of an exhaustion requirement in § 2241(c)(3), a
body of case law has developed 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. See Dickerson, 816 F.2d
at 225. See also Braden, 410 U.S. at 489-92;
Brown v. Estelle, 530 F.2d 1280, 1284 (5th Cir.
1976). This exhaustion doctrine of § 2241(c)(3) was
judicially crafted on federalism grounds to protect the state
courts' opportunity to confront and resolve initially any
constitutional issues arising within their jurisdiction and
also to limit federal interference in the state adjudicatory
process. See Dickerson, 'Section 2241(c)
provides in relevant part that "[t]he writ of habeas
corpus shall not extend to a prisoner unless . . . (3)[h]e is
in custody in violation of the constitution or laws or
treaties of the United States." 816 F.3d at 225;
Braden, 410 U.S. at 490-91.
satisfies the "in custody" requirement. At the time
of filing this action, he was incarcerated at the Harris
County Jail. Though Franklin satisfies the "in
custody" requirement, the record reveals that he has not
fully exhausted the available state remedies on his claim.
The proper procedure for seeking pre-trial relief on speedy
trial grounds is to file a petition for writ of mandamus in
the Texas Court of Criminal Appeals. See Chapman v.
Evans, 744 S.W.2d 133, 135-138 (Tex. Crim. App. 1988)
(conditionally granting mandamus petition seeking to compel
district court to set for trial or dismiss pending indictment
for offense unrelated to that for which petitioner was
presently incarcerated); Thomas v. Stevenson, 561
S.W.2d 845, 846-47 (Tex. Crim. App. 1978) (conditionally
granting mandamus petition seeking to compel district court
to set case for trial).
according to his pleadings, has not filed a state application
presenting the speedy trial claim. His pleadings suggest that
he has not pursued a petition for writ of mandamus in the
Court of Criminal Appeals. See Brown v. Estelle, 530
F.2d 1280, 1284 (5th Cir. 1976) (requiring exhaustion by
petition for writ of mandamus, but applying law in effect
prior to 1977 amendment to Article V, Section 5 of the Texas
Constitution). The Court's online research confirms that
Franklin has not filed a petition for a writ of mandamus in
the Texas Court of Criminal Appeals.
has adequate and effective state procedures for obtaining a
speedy trial, and in the absence of proof that the highest
state court with criminal law jurisdiction has been given a
fair opportunity to consider Franklin's speedy trial
claim, the due administration of justice would be better
served by insisting on exhaustion of his state court
remedies. Franklin's claim is dismissed for failure to
exhaust state remedies.
federal petition for a writ of habeas corpus is denied.
Franklin's motion to proceed in forma pauperis, (Docket
Entry No. 2), is GRANTED. Franklin's motion for release
from Confinement, (Docket Entry No. 4), is DENIED as moot.
All remaining pending motions are DENIED as moot. This case
is DISMISSED without prejudice.
showing necessary for a Certificate of Appealability is a
substantial showing of the denial of a constitutional right.
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.
2000)(citing Slack v. McDaniel, 529 U.S. 473, 483-84
(2000)). An applicant makes a substantial showing when he
demonstrates that his application involves issues that are
debatable among jurists of reason, that another court could
resolve the issues differently, or that the issues deserve
encouragement to proceed further. See Finley v.
Johnson, 243 F.3d 2150, 218 (5th Cir. 2001).
as here, the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was