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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SCOTTIE H. GIBSON, §

Petitioner, §

§

v. § No. 3:22-cv-00992-L(BT)

§

DALE S. HANNA, et al., §

Respondents. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Scottie H. Gibson 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 § 2241 and dismiss Gibson’s petition for failure 

to exhaust state court remedies.

I.

Gibson is presently detained in the Johnson County Jail. On April 25, 

2022, he filed a pro se document that the Court liberally construed as a first 

petition for 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 9, 2022, the Court entered an order pursuant to 

Castro v. United States, 540 U.S. 375 (2003), Ord. (ECF No. 6), and 

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provided Gibson with the necessary warnings associated with filing a first § 

2254 petition. The Court further directed Gibson 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 23, 2022, Gibson filed an 

amended petition (ECF No. 7), in which he clarifies that he is a state pretrial 

detainee and he is “challenging [the] legality of [his] detainment.” Id. at 2. 

Gibson references Case Number DC-F202000027, and he also states, “no 

trial or conviction has occurred.” Id. He further avers: (1) his Fourth 

Amendment rights were violated when he was subjected to an unreasonable 

search and seizure; (2) his Eighth Amendment rights are being violated in 

relation to his bail and punishment; (3) his Fourteenth Amendment rights 

are being violated due to his detention for twenty-nine months without 

being afforded a trial or a continuance of the trial date; and (4) his rights 

under “USCS Constitution Article I, § 9, clause 3 and 10” are being violated. 

Id. at 7-8. Gibson concludes that this Court should issue an order releasing 

him from pretrial detention. Id. at 8.

II.

A pretrial petition, like Gibson’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 

state pretrial detainee must fully exhaust available state remedies before 

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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, Gibson cannot demonstrate that he exhausted his state court 

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

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

review of the Texas CCA’s website reveals that Gibson has filed two writs of 

prohibition and a writ of mandamus. However, he has not presented his 

claims to the Texas CCA for review. Consequently, his petition should be 

dismissed.

III.

For the foregoing reasons, the Court should construe this action as a 

petition for writ of habeas corpus filed under § 2241 and dismiss Gibson’s 

petition without prejudice for failure to exhaust state court remedies.

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Signed May 27, 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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