from the United States District Court for the Southern
District of Texas
JOLLY and ELROD, Circuit Judges, and STARRETT, District
JENNIFER WALKER ELROD, Circuit Judge.
Montano's felony trial was terminated when the state
trial judge declared a mistrial after a witness invoked his
Fifth Amendment right against self-incrimination while
testifying at trial. After Texas determined to retry him,
Montano unsuccessfully sought relief in Texas court, arguing
that a retrial would violate his rights under the Fifth
Amendment's Double Jeopardy Clause. Montano then filed a
habeas petition in federal district court, but the district
court dismissed his habeas petition without prejudice for
failure to exhaust available state remedies. Because Montano
has exhausted all available state remedies in accordance with
our precedent, we REVERSE the dismissal of his habeas
petition and REMAND for adjudication of his Double Jeopardy
Montano was indicted in Harris County, Texas, for the felony
offense of aggregate theft from a nonprofit. His trial began
in September 2013, but never reached fruition. Instead, the
state trial judge declared a mistrial after a prosecution
witness incriminated himself during cross-examination and
thereafter invoked his Fifth Amendment right against
self-incrimination. Texas determined to retry Montano on the
sought habeas relief in state court, arguing that a retrial
would violate the Fifth Amendment's Double Jeopardy
Clause. The state habeas court
denied relief, as did the court of appeals, the latter
concluding that Montano had consented to a mistrial. See
Ex parte Montano, 451 S.W.3d 874, 877-80 (Tex.
App.-Houston [1st Dist.] 2014, pet ref'd). The Texas
Court of Criminal Appeals denied Montano's petition for
review as well as his subsequent motion for rehearing.
then filed a habeas petition in federal court under 28 U.S.C.
§ 2241, arguing again that a retrial would violate the
Double Jeopardy Clause. The federal district court determined
that Montano failed to exhaust all available state remedies
as is required before a federal district court may entertain
a Section 2241 petition. In particular, the district court
cited two provisions of the Texas Code of Criminal Procedure
that allows a defendant to submit a special plea of Double
Jeopardy at trial. See Tex. Crim. Proc. Code arts.
45.023(a)(3), 27.05. If Montano entered the special plea and
was convicted, the district court concluded, he would
"have the opportunity to appeal that conviction in state
court and, if unsuccessful, to seek state habeas
relief." The district court dismissed his Section 2241
petition without prejudice, and Montano timely appealed.
review for abuse of discretion a dismissal of a § 2241
petition for failure to exhaust administrative
remedies." Gallegos-Hernandez v. United States,
688 F.3d 190, 194 (5th Cir. 2012); see also Fuller v.
Rich, 11 F.3d 61, 62 (5th Cir. 1994) (same). Any factual
issues underlying the district court's decision are
reviewed for clear error and issues of law are reviewed
de novo. Gallegos-Hernandez, 688 F.3d at
194; see also Jeffers v. Chandler, 253 F.3d 827, 830
(5th Cir. 2001).
raises two arguments on appeal. First, he contends that the
federal district court was wrong to conclude that he failed
to exhaust available state remedies. Second, he argues the
merits of his Double Jeopardy claim.
28 U.S.C. § 2254, Section 2241's text does not
require exhaustion. However, it has long been settled that a
Section 2241 petitioner must exhaust available state court
remedies before a federal court will entertain a challenge to
state detention. As we explained before,
[d]espite the absence of an exhaustion requirement in the
statutory language of section 2241(c)(3), a body of case law
has developed holding that although section 2241 establishes
jurisdiction in the federal courts to consider pre-trial
habeas corpus petitions, federal courts should abstain from
the exercise of that jurisdiction if the issues raised in the
petition may be resolved either by ...