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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LUIS RESENDIZ ROMERO, §

Petitioner, §

§

v. § No. 3:22-cv-01040-K (BT)

§

18TH JUDICIAL DISTRICT COURT, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Luis Resendiz Romero filed a pro se document the undersigned 

initially construed as a petition for a writ of habeas corpus under 28 U.S.C. 

§ 2254. But as explained below, the Court should construe this action as one 

seeking a writ of habeas corpus under 28 U.S.C. § 2241 and dismiss 

Romero’s petition for failure to exhaust state court remedies.

I.

Romero is presently detained in the Johnson County Jail. On May 3, 

2022, he filed a pro se document (ECF No. 3) that the Court liberally 

construed as a first petition for a writ of habeas corpus under 28 U.S.C. § 

2254. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) 

(recognizing that pro se pleadings “however inartfully pleaded, must be held 

to less stringent standards than formal pleadings drafted by lawyers”) 

(internal quotation marks omitted). On May 11, 2022, the Court entered an 

order pursuant to Castro v. United States, 540 U.S. 375 (2003), Ord. (ECF 

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No. 5), and provided Romero with the necessary warnings associated with 

filing a first § 2254 petition. The Court further directed Romero to either 

withdraw his petition or amend it to include all the claims he wished to raise 

with respect to his state conviction and/or sentence. On May 31, 2022, 

Romero filed an amended petition (ECF No. 6), in which he clarifies that “no 

conviction has been rendered,” and he is a state pretrial detainee challenging 

“the legality of [his] detention.” Id. 2. He references Case Number DCF202100120, and he states, “no sentence [has been] given.” Id. Romero 

further avers: (1) his Fourth Amendment rights are being violated because 

he has been held for eighteen months, and his continued detention is 

unreasonable; (2) his Fourteenth Amendment rights are being violated 

because his unlawful detainment is depriving him of life, liberty, and 

property; and (3) his constitutional rights under “Art. 1, Sec. 9, Clause 3” are 

being violated because his unlawful detention has “impaired the bond” given 

by the magistrate judge. Id. 6-7. Romero concludes that he should be 

released from confinement pending further proceedings in his state criminal 

case. Id. 7. 

II.

A pretrial petition, like Romero’s, is properly brought under § 2241, 

which applies to a person in custody, regardless of the present status of the 

case pending against that person or whether a court has rendered a final 

judgment. See Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998). But a 

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state pretrial detainee must fully exhaust available state remedies before 

seeking federal habeas relief. See Dickerson v. Louisiana, 816 F.2d 220, 225 

(5th Cir. 1987) (addressing a § 2241 filed by a state pretrial detainee). And 

exhaustion under § 2241 requires that a state pretrial detainee fairly present 

his claims to the state courts. Id. at 228. In Texas, this involves submitting 

the factual and legal basis of any claim to the Texas Court of Criminal 

Appeals (CCA). Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). An 

exception may exist where there is an absence of available state corrective 

measures available or “exceptional circumstances of peculiar urgency” make 

any such process ineffective to protect the petitioner’s rights. See Deters v. 

Collins, 985 F.2d 789, 795 (5th Cir. 1993) (quoting Ex Parte Hawk, 321 U.S. 

114, 118 (1944)).

Here, Romero cannot demonstrate that he exhausted his state court 

remedies prior to filing his petition. In his amended petition, he does not 

mention the exhaustion of his claims in state court. Further, an independent 

review of the Texas CCA’s website reveals that the CCA received a writ of 

mandamus from Romero on March 25, 2022, and it was denied without an 

order on April 6, 2022. However, he has not presented his claims to the 

Texas CCA for review. Consequently, his petition should be dismissed.

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III.

The Court should construe this action as a petition for writ of habeas 

corpus under § 2241 and dismiss Romero’s petition without prejudice for 

failure to exhaust state court remedies.

Signed June 8, 2022.

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report 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 report 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 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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