Opinion
CIVIL 3:23-CV-88-K-BK
02-06-2023
Scottie H. Gibson, #201901879, Petitioner, v. Dale S. Hanna, District Attorney, Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Renee Harris Toliver Judge
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Petitioner Scottie H. Gibson's pro se petition for writ of habeas corpus under 28 U.S.C. § 2241 was referred to the United States magistrate judge for case management, including the issuance of findings and a recommended disposition where appropriate. As detailed here, the petition should be summarily DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies.
I. BACKGROUND
Gibson, a state pretrial detainee in the Johnson County Jail, complains of speedy trial violations and lengthy pretrial incarceration. Doc. 3 at 2, 5-7. He is awaiting trial on a grand jury indictment charging him with multiple counts of sexual abuse and sexual assault of child and indecency with a child by sexual contact. State v. Gibson, No. DC-F202000027 (249th Dist. Ct. Johnson Cnty., Tex.). According to the state trial court docket sheet, he has court-appointed counsel on his criminal charges. Gibson states he has been incarcerated for three years and one month without a trial. Doc. 3 at 5; Doc. 4 at 1. He requests to be released pending trial. Doc. 3 at 7.
The trial court docket sheet is available by entering the case number (DC-F202000027) at https://pa.johnsoncountytx.org/PublicAccess/CaseDetail.aspx?CaseID=1041254 (last accessed Jan 18, 2023).
In 2022, Gibson filed in the Texas Court of Criminal Appeals four applications for writ of mandamus, writ of prohibition, and writ of habeas corpus. All applications were denied. Ex parte Gibson, Nos. WR-93,552-01 through -04 (Tex. Crim. App. 2022). On January 6, 2023, Gibson filed a new application for writ of mandamus, which remains pending in the Court of Criminal Appeals. Ex parte Gibson, No. WR-93,552-05. In 2022, Gibson also unsuccessfully filed two prior federal habeas corpus petition under 28 U.S.C. § 2241, which this Court dismissed for failure to exhaust state court remedies. See Gibson v. Hanna, No. 3:22-CV-2057-M-BT (N.D. Tex. Nov. 14, 2022), notice of appeal filed, No. 22-11165 (5th Cir.); Gibson v. Hanna, No. 3:22-CV-992-L-BT (N.D. Tex. Sep. 29, 2022), certificate of appealability denied, No. 22-10944 (5th Cir. Dec. 22, 2022).
Upon review, the Court finds that Gibson has again failed to properly exhaust available state court remedies. Therefore, his petition should be dismissed.
II. ANALYSIS
Challenges raised in a pretrial habeas corpus petition are governed by 28 U.S.C. § 2241. See Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998). A § 2241 habeas petition is subject to summary dismissal if it appears from the face of the petition that the petitioner is not entitled to relief. See Wottlin v. Fleming, 136 F.3d 1032, 1034 (5th Cir. 1998) (affirming summary dismissal of § 2241 petition without ordering an answer from respondent); see also Rule 4 of the RULES GOVERNING SECTION 2254 CASES (providing for summary dismissal of a habeas petition).
Rule 1(b) of the RULES GOVERNING SECTION 2254 CASES renders the 2254 Rules applicable to habeas petitions not covered by § 2254.
Pretrial habeas relief is available under 28 U.S.C. § 2241(c) to a person “‘in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against [him].'” Hartfield v. Osborne, 808 F.3d 1066, 1071 (5th Cir. 2015) (quoting Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987)). A pretrial detainee, however, must fully exhaust available state remedies before seeking federal habeas relief. Montano v. Texas, 867 F.3d 540, 542-43 (5th Cir. 2017) (citing Dickerson, 816 F.2d at 225). This entails submitting the factual and legal basis of any claim to the Texas Court of Criminal Appeals. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993) (citations omitted); Curtis v. Garza Cnty. Jail, No. 5:18-CV-205-M-BQ, 2019 WL 5698802, at *2 (N.D. Tex. Oct. 8, 2019), adopting R. & R., 2019 WL 5697895 (N.D. Tex. Nov. 4, 2019). Exceptions exist only “where the available . . . remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Montano, 867 F.3d 542-43 (internal quotations and quoted case omitted).
In the pre-conviction context, a detainee confined after a felony indictment may file an application for writ of habeas corpus pursuant to Article 11.08 of the Texas Code of Criminal Procedure with the judge of the court in which he is indicted. See TEX. CODE CRIM. PROC. ANN. ART. 11.08. If the trial court denies habeas relief under Article 11.08, the applicant can take a direct appeal to an intermediate appellate court and then petition for discretionary review by the Texas Court of Criminal Appeals. See, e.g., Ex parte Twyman, 716 S.W.2d 951, 952 (Tex. Crim. App. 1986) (citing Ex parte Payne, 618 S.W.2d 380, 382 n. 5 (Tex. Crim. App. 1981) (citations omitted)); Curtis, 2019 WL 5698802, at *2.
Gibson has not satisfied the exhaustion requirement. A review of his petition confirms that he did not file a state habeas application under Article 11.08 raising his speedy trial and unlawful pretrial detention claims in the trial court. Further, a search of online records reflects that no Article 11.08 state habeas application or appeal was filed. And, as noted, Gibson unsuccessfully filed four motions for leave to file writs of mandamus, prohibition, and habeas corpus, which the Texas Court of Criminal Appeals denied. See Ex parte Gibson, Nos. WR-93,552-01, WR-93,552-02, WR-93,552-03, WR-93,552-04 (Tex. Crim. App. 2022). As such, the Texas Court of Criminal Appeals has not had an opportunity to consider Gibson's speedy trial and unlawful pretrial detention claims; thus, they remain unexhausted.
The Tenth District Court of Appeals and Court of Criminal Appeals docket sheets are available at https://www.txcourts.gov/10thcoa/ and https://www.txcourts.gov/cca/ (last accessed Jan. 18, 2023).
III. CONCLUSION
For all these reasons, Gibson's habeas corpus petition should be DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies.
SO RECOMMENDED.