IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

LEONTE DEMOND STONE, § 

TDCJ No. 2153032, § 

 § 

Petitioner, § 

 § 

V. § No. 3:22-cv-512-M-BN 

§ 

DIRECTOR, TDCJ-CID, § 

§ 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Petitioner Leonte Demond Stone, a Texas prisoner convicted in Dallas County 

of aggravated assault with a deadly weapon and murder in 2018, previously filed a 

pro se civil rights case in this district that included allegations challenging his 2018 

state convictions, in which the court dismissed his civil claims as frivolous but – in 

response to Stone’s “objection” that his claims were really seeking habeas relief – 

severed those habeas claims and opened a new action under 28 U.S.C. § 2254. See 

Stone v. Birmingham, No. 3:20-cv-2494-D-BT, 2021 WL 6802921 (N.D. Tex. Oct. 6, 

2021), rec. adopted, 2022 WL 326565 (N.D. Tex. Feb. 3, 2022); see also Stone v. 

Birmingham, No. 3:22-cv-272-D-BT (N.D. Tex.) (pending Section 2254 action). 

Stone, incarcerated at a state prison not in this district, subsequently 

submitted a pro se filing that initiated this case but does not collaterally attack his 

2018 state convictions and instead seeks compassionate release under 18 U.S.C. § 

3582(c)(1)(A). See Dkt. No. 3. This filing was construed as a habeas petition under 

Section 2254. And Chief Judge Barbara M. G. Lynn referred the construed habeas 

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petition to the undersigned United States magistrate judge for pretrial management 

under 28 U.S.C. § 636(b) and a standing order of reference. 

Insofar as this filing should be considered under Section 2254, a district court 

may summarily dismiss a Section 2254 habeas application “if it plainly appears from 

the face of the petition and any exhibits annexed to it that the petitioner is not 

entitled to relief in the district court.” RULE 4, RULES GOVERNING SECTION 2254 CASES

(Habeas Rule 4). 

This rule differentiates habeas cases from other civil cases with 

respect to sua sponte consideration of affirmative defenses. The district 

court has the power under [Habeas] Rule 4 to examine and dismiss 

frivolous habeas petitions prior to any answer or other pleading by the 

state. This power is rooted in “the duty of the court to screen out 

frivolous applications and eliminate the burden that would be placed on 

the respondent by ordering an unnecessary answer.” 

Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll. § 2254 

Rule 4 Advisory Committee Notes). 

Here, the Court may exercise its power to summarily dismiss any Section 2254 

application under Habeas Rule 4 insofar as Stone seeks compassionate release under 

a federal statute. Section 3582(c)(1)(A), as amended by the First Step Act in 2018, 

empowers “[a] court, on a motion by the [Federal Bureau of Prisons] or by the 

defendant after exhausting all BOP remedies, [to] reduce or modify a term of 

imprisonment, probation, or supervised release after considering the factors of 18 

U.S.C. § 3553(a), if ‘extraordinary and compelling reasons warrant such a reduction.’” 

United States v. Chambliss, 948 F.3d 691, 692-93 (5th Cir. 2020) (quoting 18 U.S.C. 

§ 3582(c)(1)(A)(i)). But, “[p]lainly, Section 3582 is inapplicable because a federal court 

did not sentence [Stone], and he is not in the custody of the Bureau of Prisons.” Wilson 

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v. Warden Morehouse Par. Jail, Civ. A. No. 20-1252, 2020 WL 7700611, at *2 (W.D. 

La. Nov. 16, 2020). 

Further, to the extent that Stone raises as a basis for his release claims 

concerning the conditions of his confinement (outside this judicial district) – such as 

the prison’s response to the COVID-19 pandemic – habeas “does not, in this circuit, 

afford release for prisoners held in state custody due to adverse conditions of 

confinement.” Rice v. Gonzalez, 985 F.3d 1069, 1070 (5th Cir. 2021); see also id. (“As 

we noted in Carson v. Johnson, ‘[i]f “a favorable determination ... would not 

automatically entitle [the prisoner] to accelerated release,” ... the proper vehicle is a 

§ 1983 suit.’” (quoting Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997) 

(quoting, in turn, Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam)))). And 

conditions-of-confinement claims under 42 U.S.C. § 1983 must be made in the federal 

judicial district and division where Stone is incarcerated. See 28 U.S.C. § 1391(b). 

Finally, the current filing could be liberally construed as requesting release on 

bail, considering that Stone now has a pending Section 2254 case – Stone v. 

Birmingham, No. 3:22-cv-272-D-BT (N.D. Tex.). “In spite of the lack of specific 

statutory authorization, it is within the inherent power of a District Court of the 

United States to enlarge a state prisoner on bond pending hearing and decision on 

his application for a writ of habeas corpus.” In re Wainwright, 518 F.2d 173, 174 (5th 

Cir. 1975) (per curiam) (collecting authority).1

1 See also id. at 174 n.1 (observing without deciding that, because they are 

vested with “‘all powers and duties conferred or imposed upon United States 

commissioners by law,’” which included “to take bail,” United States magistrate 

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Release on bail should be granted to a prisoner pending post-conviction 

habeas review “only when the petitioner has raised substantial 

constitutional claims upon which he has a high probability of success, 

and also when extraordinary or exceptional circumstances exist which 

make the grant of bail necessary to make the habeas remedy effective.” 

Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974). Examples of 

“extraordinary circumstances” include the serious deterioration of the 

petitioner’s health while incarcerated, short sentences for relatively 

minor crimes so near completion that extraordinary action is essential 

to make collateral review truly effective, and extraordinary delay in 

processing a habeas petition. See id. at 702 n.1. 

United States v. Roberts, 250 F.3d 744, 2001 WL 274751, at *1 (5th Cir. Feb. 22, 2001) 

(per curiam); see also Watson v. Goodwin, 709 F. App’x 311, 312 (5th Cir. 2020) (per 

curiam) (applying Calley where the district court denied bail in a Section 2254 

proceeding). 

The United States Court of Appeals for the Fifth Circuit has held that both a 

substantial constitutional claim with a high probability of success and an 

extraordinary or exceptional circumstance must be present before a Court may grant 

a request for release on bail pending its decision on a collateral attack of a sentence. 

See United States v. Bishop, 519 F. App’x 216, 218 (5th Cir. 2012) (per curiam) 

(“Bishop cannot demonstrate that she has a high probability of success on her 

constitutional claim. We cannot assess the probability of success of her claim of 

ineffective assistance of counsel until the district court holds an evidentiary hearing 

on remand. Accordingly, we need not determine whether her deteriorating health 

constitutes an exceptional circumstance.”); accord United States v. Vogel, 595 F. App’x 

judges possess the power “to enlarge a state prisoner on bail pending district court 

consideration of his habeas corpus action” (quoting 28 U.S.C. § 636(a)(1); citation 

omitted)). 

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416, 417 (5th Cir. 2015) (per curiam); United States v. Pratt, 304 F. App’x 299, 299 

(5th Cir. 2008) (per curiam). 

Stone has yet to show that there is a high probability of success on any Section 

2254 claim that he may make. Cf. Awan v. Davis, 806 F. App’x 326, 326 (5th Cir. 

2020) (per curiam) (“Considering the deferential standard of review applicable in this 

habeas case, Awan has not shown that his ineffective assistance claim has a high 

probability of success.” (citing Calley, 496 F.2d at 702; Watson, 709 F. App’x at 312; 

28 U.S.C. § 2254(d))); Rhoades v. Davis, 852 F.3d 422, 434 (5th Cir. 2017) (“Our 

federal habeas review of a state court’s denial of an ineffective-assistance-of-counsel 

claim is ‘doubly deferential’ because we take a highly deferential look at counsel’s 

performance through the deferential lens of § 2254(d).” (citation omitted)). 

Accordingly, a request for release on bail made in this case (in which no Section 2254 

application is pending) should be denied. 

And, for all the reasons above, showing that it plainly appears from the face of 

the filing that initiated this case that Stone is not entitled to relief, the Court should 

dismiss this case with prejudice. 

Recommendation

The Court should dismiss this case with prejudice. 

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.

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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: March 7, 2022 

 _________________________________________ 

 DAVID L. HORAN 

 UNITED STATES MAGISTRATE JUDGE 

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