Opinion
No. 3:20-cv-3738-G-BN
01-04-2021
JOSE RAFAEL PALACIO ROMERO, Dallas Cnty. Jail Bookin No. 20033687, Petitioner, v. DALLAS COUNTY JAIL, ET AL., Respondents.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Jose Rafael Palacio Romero, detained pretrial at the Dallas County jail, indicted for unauthorized used of a motor vehicle, see State v. Palacio, No. F2037929 (204th Jud. Dist. Ct., Dallas Cnty., Tex.), has submitted a pro se filing construed as an application for a writ of habeas corpus under 28 U.S.C. § 2241, challenging his continued detention, see Dkt. No. 3. Senior United States District Judge A. Joe Fish has referred this case to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference. And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss the habeas petition without prejudice to Petitioner's right to pursue available state court remedies.
Insofar as Petitioner is a state pretrial detainee, he "is entitled to raise constitutional claims in a federal habeas proceeding under § 2241 if two requirements are satisfied." Ray v. Quarterman, No. 3:06-cv-850-L, 2006 WL 2842122, at *1 (N.D. Tex. July 24, 2006), rec. adopted, 2006 WL 2844129 (N.D. Tex. Sept. 29, 2006). His continuing detention at the Dallas County jail satisfies the first, "in custody" requirement.
But he must also exhaust his "available state remedies." Ray, 2006 WL 2842122, at *1 & n.1 (explaining that, "[d]espite the absence of an exhaustion requirement in the statutory language of § 2241, the courts have developed an exhaustion doctrine, holding that federal courts should abstain from the exercise of jurisdiction until the issues are resolved in state court"; citing Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987); Braden v. 30th Judicial Circuit Ct of Ky., 410 U.S. 484, 489-92 (1973)); see also Fain v. Duff, 488 F.2d 218, 223 (5th Cir. 1973) ("With respect to collateral attack on convictions in state court, the requirement was codified in 28 U.S.C. § 2254(b), but the requirement applies to all habeas corpus actions.").
State remedies are ordinarily not considered exhausted so long as the petitioner may effectively present his claims to the state courts by a currently available and adequate procedure. Braden, 410 U.S. at 489. This entails submitting the factual and legal basis of any claim to the highest available state court for review. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). A Texas pretrial detainee must present his claim to the Texas Court of Criminal Appeals. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985).Ray, 2006 WL 2842122, at *1; see also Braden, 410 U.S. at 493 ("Derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court" is not allowed.).
A petitioner may be excused from the exhaustion requirement only if he can show "exceptional circumstances of peculiar urgency." Deters, 985 F.2d at 795. Absent exceptional circumstances, a pre-trial detainee may not adjudicate the merits of his claims before a judgment of conviction has been entered by a state court. Braden, 410 U.S. at 489.
Petitioner fails to make this showing, see generally Dkt. No. 3, which requires that the Court dismiss his habeas petition without prejudice, to allow him to pursue available state court remedies.
Recommendation
The Court should dismiss the pending habeas action without prejudice to Petitioner Jose Rafael Palacio Romero's right to pursue available state court remedies.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: January 4, 2021
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE