IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

JOHN M. BROWN, § 

#87517, § 

 § 

Petitioner, § 

 § 

V. § No. 3:22-cv-2102-M-BN 

 § 

HUNT COUNTY SHERIFF, § 

 § 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

John M. Brown, detained at the Hunt County jail, facing charges for theft of 

services, sent a letter to the Court detailing his complaints with the pending state 

prosecution – that his attorney has not been responsive and that he has been unable 

to obtain release on a bond. See Dkt. No. 3. 

Because this letter should be considered an attack on Brown’s pretrial 

confinement, his filing was construed as seeking habeas relief under 28 U.S.C. § 2241. 

Cf. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is 

challenging the very fact or duration of his physical imprisonment, and the relief he 

seeks is a determination that he is entitled to immediate release or a speedier release 

from that imprisonment, his sole federal remedy is a writ of habeas corpus.”). 

United States District Judge Barbara M. G. Lynn referred the construed 

Section 2241 habeas application to the undersigned United States magistrate judge 

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

And the undersigned enters these findings of fact, conclusions of law, and 

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recommendation that the Court should dismiss the construed Section 2241 petition 

without prejudice to Brown’s right to pursue and exhaust available state remedies. 

“‘[A] state prisoner who is not in custody pursuant to a state court judgment’” 

– such as one who is in “‘pre-conviction custody, custody awaiting extradition, or other 

forms of custody that are possible without a conviction’” – may “take advantage of [28 

U.S.C.] § 2241 relief.” In re Wright, 826 F.3d 774, 782 (4th Cir. 2016) (quoting White 

v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004)). 

That is, such a prisoner may “raise constitutional claims in a federal habeas 

proceeding under § 2241 if two requirements are satisfied.” Ray v. Quarterman, No. 

3:06-cv-850-L, 2006 WL 2842122, at *1 (N.D. Tex. July 24, 2006), rec. adopted, 2006 

WL 2844129 (N.D. Tex. Sept. 29, 2006). 

Brown’s detention at the jail satisfies the first, “in custody” requirement. 

But Brown must still exhaust “available state remedies.” Ray, 2006 WL 

2842122, at *1 & n.1 (explaining that, “[d]espite the absence of an exhaustion 

requirement in the statutory language of § 2241, the courts have developed an 

exhaustion doctrine, holding that federal courts should abstain from the exercise of 

jurisdiction until the issues are resolved in state court”; citing Dickerson v. Louisiana, 

816 F.2d 220, 225 (5th Cir. 1987); Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 

484, 489-92 (1973)); see also Fain v. Duff, 488 F.2d 218, 223 (5th Cir. 1973) (“With 

respect to collateral attack on convictions in state court, the requirement was codified 

in 28 U.S.C. § 2254(b), but the requirement applies to all habeas corpus actions.”). 

State remedies are ordinarily not considered exhausted so long as the 

petitioner may effectively present his claims to the state courts by a 

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currently available and adequate procedure. Braden, 410 U.S. at 489. 

This entails submitting the factual and legal basis of any claim to the 

highest available state court for review. Carter v. Estelle, 677 F.2d 427, 

443 (5th Cir. 1982). A Texas pretrial detainee must present his claim to 

the Texas Court of Criminal Appeals. See Deters v. Collins, 985 F.2d 789, 

795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 

1985). 

A petitioner may be excused from the exhaustion requirement 

only if he can show “exceptional circumstances of peculiar urgency.” 

Deters, 985 F.2d at 795. Absent exceptional circumstances, a pre-trial 

detainee may not adjudicate the merits of his claims before a judgment 

of conviction has been entered by a state court. Braden, 410 U.S. at 489. 

Ray, 2006 WL 2842122, at *1; see also Braden, 410 U.S. at 493 (“Derailment of a 

pending state proceeding by an attempt to litigate constitutional defenses 

prematurely in federal court” is not allowed.). 

Brown has not made this showing. The Court should therefore dismiss the 

habeas petition without prejudice, to allow Brown to pursue – and exhaust – available 

state remedies. 

Recommendation

The Court should dismiss the pending habeas action without prejudice to 

Petitioner John M. Brown’s right to pursue and exhaust available state remedies.

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.

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 

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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: September 23, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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