Order – Page 1 

IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

SCOTTIE H. GIBSON, § 

§ 

 Petitioner, § 

§

v. § 

§

 Civil Action No. 3:22-CV-0992-L-BT

DALE S. HANNA and DAVID 

VERNON,

§ 

§ 

§ 

 Respondents. § 

 

ORDER 

 

On May 27, 2022, United States Magistrate Judge Rebecca Rutherford entered the 

Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) 

(Doc. 10), recommending that the court dismiss without prejudice pro se Petitioner Scottie H. 

Gibson’s (“Petitioner”) petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 3). The 

Report, construing Petitioner’s request as brought under 28 U.S.C. § 2241 because Petition is a 

pretrial detainee, recommended dismissal because Petitioner failed to exhaust state remedies as 

required. Petitioner filed an objection to the Report, asserting that the Report is in error because 

he clearly specified in his petition that he exhausted all state court remedies. Doc. 14 at 1. 

Having reviewed the pleadings, file, record in this case, Report, and Petitioner’s objections, 

the court determines that the findings and conclusions of the magistrate judge are correct, and

accepts them as those of the court. Petitioner has not satisfied exhaustion of state remedies because 

he has not shown that his pending writs for prohibition and writ for mandamus have been resolved 

by the Texas Court of Criminal Appeals. Accordingly, the court denies Petitioner’s petition for 

writ of habeas corpus under 28 U.S.C. § 2255 (Doc. 3), construed appropriately as brought under 

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Order – Page 2 

28 U.S.C. § 2241, because he failed to exhaust his available state remedies as required, and for 

this reason, the court dismisses without prejudice this action. 

Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 

22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), 

the court denies a certificate of appealability.* The court determines that Petitioner has failed to 

show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims 

debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition 

states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was 

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this 

determination, the court accepts and incorporates by reference the magistrate judge’s report filed 

in this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate 

filing fee or submit a motion to proceed in forma pauperis on appeal. 

 It is so ordered this 29th day of September, 2022. 

 _________________________________ 

 Sam A. Lindsay 

 United States District Judge 

*

 Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows: 

 (a) Certificate of Appealability. The district court must issue or deny a certificate 

of appealability when it enters a final order adverse to the applicant. Before entering the final order, 

the court may direct the parties to submit arguments on whether a certificate should issue. If the 

court issues a certificate, the court must state the specific issue or issues that satisfy the showing 

required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the 

denial but may seek a certificate from the court of appeals under Federal Rule of Appellate 

Procedure 22. A motion to reconsider a denial does not extend the time to appeal. 

(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an 

order entered under these rules. A timely notice of appeal must be filed even if the district court 

issues a certificate of appealability. 

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