IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

JOSE E. CEDILLO, § 

TDCJ No. 2207245, § 

 § 

Petitioner, § 

 § 

V. § No. 3:22-cv-1767-K-BN 

§ 

DIRECTOR, TDCJ-CID, § 

§ 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Petitioner Jose E. Cedillo, a Texas prisoner, was convicted of sexual assault of 

a child and sentenced to 12 years of imprisonment in 2018. See State v. Cedillo, F146603-Y (Crim. Dist. Ct. No. 7, Dall. Cnty., Tex. Dec. 20, 2018). Records available 

online reflect that Cedillo neither appealed this conviction nor filed a state habeas 

application. But he did file a pro se application for a writ of habeas corpus under 28 

U.S.C. § 2254 in 2021, in which he confirmed that he neither appealed nor collaterally 

attacked his conviction in state court – that application was dismissed without 

prejudice under Federal of Civil Procedure 41(b). See Cedillo v. Dir., TDCJ-CID, No. 

3:21-cv-191-S-BH (N.D. Tex. June 25, 2021). 

Cedillo now returns to federal court pro se through a Motion for New Trial and 

Motion in Arrest of Judgment [Dkt. No. 3], construed as a Section 2254 application, 

which United States District Judge Ed Kinkeade referred to the undersigned United 

States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a 

standing order of reference. 

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While the construed Section 2254 application should not be considered 

successive, since Cedillo’s initial application was dismissed without prejudice, see, 

e.g., Jones v. Dir., TDCJ-CID, No. 3:21-cv-1445-S-BN, 2021 WL 3940635, at *1 (N.D. 

Tex. Aug. 17, 2021), rec. accepted, 2021 WL 3930724 (N.D. Tex. Sept. 1, 2021), because 

Cedillo has failed to show that, before resorting to Section 2254 relief, he fully and 

properly exhausted his state remedies as to the criminal judgment he now challenges, 

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

that the Court should dismiss the construed habeas application under Rule 4 of the 

Rules Governing Section 2254 Cases (Habeas Rule 4) without prejudice to Cedillo’s 

right to fully and properly exhaust his state remedies. 

“[S]tate courts play the leading role in assessing challenges to state sentences 

based on federal law.” Shinn v. Kayer, 141 S. Ct. 517, 526 (2020) (per curiam). A state 

prisoner must therefore fully exhaust state remedies before seeking federal habeas 

relief. See 28 U.S.C. § 2254(b)(1)(A); Loynachan v. Davis, 766 F. App’x 156, 159 (5th 

Cir. 2019) (“A federal court may not grant habeas relief unless the petitioner ‘has 

exhausted the remedies available in the courts of the State.’” (quoting 28 U.S.C. § 

2254(b)(1)(A))). 

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

available state court for review in a procedurally correct manner. See Satterwhite v. 

Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989).1 Texas prisoners must present their 

1 See also Nickleson v. Stephens, 803 F.3d 748, 753 (5th Cir. 2015) (“The 

exhaustion doctrine demands more than allusions in state court to facts or legal 

issues that might be comprehended within a later federal habeas petition. The 

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claims to the Texas Court of Criminal Appeals (the CCA) in a petition for 

discretionary review (PDR) or an application for state post-conviction relief. See 

Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986). “A petitioner need merely 

press a claim through one of these avenues to exhaust that claim. [But, t]o exhaust a 

claim, it must also be presented in a procedural context in which state courts 

necessarily review the claim on the merits.” Loynachan, 766 F. App’x at 159 (citations 

omitted). 

Under Habeas Rule 4, 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.” Id.

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 

exhaustion doctrine is based on comity between state and federal courts, respect for 

the integrity of state court procedures, and ‘a desire to protect the state courts’ role 

in the enforcement of federal law.’” (quoting Castille v. Peoples, 489 U.S. 346, 349 

(1989) (quoting, in turn, Rose v. Lundy, 455 U.S. 509, 518 (1982)))); Loynachan, 766 

F. App’x at 159 (“To determine whether a § 2254 petitioner has exhausted a claim, 

his federal claim should be compared with the claim he raised in state court ‘It is 

not enough that all the facts necessary to support the federal claim were before the 

state courts or that a somewhat similar state-law claim was made.’ ‘Rather, the 

petitioner must afford the state court a “fair opportunity to apply controlling legal 

principles to the facts bearing upon his constitutional claim.”’ This reflects the fact 

in the habeas system, state courts are provided the first opportunity to assess the 

claim.” (citations omitted)). 

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Rule 4 Advisory Committee Notes); see Rodriguez v. Dretke, No. 5:04-cv-28-C, 2004 

WL 1119704, at *1 (N.D. Tex. May 17, 2004) (applying Habeas Rule 4 prior to the 

filing of an answer where this “Court [was] of the opinion that [the petitioner] has 

failed to exhaust his state court remedies” (citing Kiser)).2

Because Cedillo neither appealed nor pursued habeas relief in state court, the 

CCA has yet to consider – either through a PDR or a state habeas application – the 

substance of the claims that Cedillo intends to raise here. He has thus failed to 

exhaust state remedies in a procedurally correct manner. And his Section 2254 

application should be dismissed without prejudice under Habeas Rule 4. See, e.g.,

Sam v. Louisiana, 409 F. App’x 758, 763 (5th Cir. 2011) (per curiam) (“A federal 

district court may not adjudicate a habeas petition unless all claims in the petition 

are exhausted.” (citing Rhines v. Weber, 544 U.S. 269, 274 (2005))). 

Recommendation and Directions to Clerk of Court

The Court should dismiss Petitioner Jose E. Cedillo’s application for a writ of 

habeas corpus under Rule 4 of the Rules Governing Section 2254 Cases without 

prejudice to his right to fully and properly exhaust state remedies. The Court should 

further direct that the Clerk of Court serve any order accepting or adopting this 

2 See also Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir. 1998) (“[T]here is 

no doubt that a federal court may raise sua sponte a petitioner’s failure to exhaust 

state law remedies and apply that doctrine to bar federal litigation of petitioner’s 

claims until exhaustion is complete.” (citations omitted)); cf. Dispensa v. Lynaugh, 

847 F.2d 211, 217 (5th Cir. 1988) (“This requirement, that a petitioner who seeks 

federal redress must first seek relief in state courts and thus exhaust his state 

remedies, is not a jurisdictional prerequisite, but a prudential policy based on 

concerns for federalism.” (citations omitted)). 

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recommendation on the Texas Attorney General. And the Clerk of Court is 

DIRECTED to serve electronically this recommendation and the petition, along with 

any attachments thereto and brief in support thereof, on the Texas Attorney General 

as counsel for Respondent, directed to the attention of Edward L. Marshall, Chief, 

Criminal Appeals Division, Texas Attorney General’s Office. See RULE 4, RULES 

GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS. 

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 

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: August 15, 2022 

 _________________________________________ 

 DAVID L. HORAN 

 UNITED STATES MAGISTRATE JUDGE 

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