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Montano v. State

United States Court of Appeals, Fifth Circuit

August 11, 2017

JOSEPH MONTANO, Petitioner-Appellant,
v.
STATE OF TEXAS, Respondent-Appellee.

         Appeal from the United States District Court for the Southern District of Texas

          Before JOLLY and ELROD, Circuit Judges, and STARRETT, District Judge. [*]

          JENNIFER WALKER ELROD, Circuit Judge.

         Joseph 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 claim.

         I.

         Joseph 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 same charge.

         Montano sought habeas relief in state court, arguing that a retrial would violate the Fifth Amendment's Double Jeopardy Clause.[1] 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.

         Montano 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.

         II.

         "We 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).

         III.

         Montano 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.

         A.

         Unlike 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 ...

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