United States Court of Appeals

for the Fifth Circuit

No. 20-20158

James Rubio, 

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division, 

Respondent—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-1126

Before Willett, Engelhardt, and Wilson, Circuit Judges.

Per Curiam:*

A civilly committed Texan seeks habeas relief under 28 U.S.C. 

§ 2254. The district court denied his petition on procedural grounds. We 

AFFIRM. 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 9, 2022

Lyle W. Cayce

Clerk

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I

James Rubio pleaded nolo contendere to aggravated sexual assault. A 

jury later found that he was a “sexually violent predator.” That finding 

caused Rubio’s civil commitment under Texas law. See Tex. Health &

Safety Code §§ 841.003, .081. Rubio appealed, but his appeal was 

dismissed after he violated his commitment order.

Rubio later unsuccessfully attempted to challenge his civil 

commitment in Texas state court. He tried to file a habeas petition in state 

court under Texas Code of Criminal Procedure Article 11.07. Habeas under 

that Article “seeks relief from a felony judgment imposing a penalty other 

than death.” Tex. Code Crim. Pro. art. 11.07, § 1. Because civil 

commitment is not a felony conviction,1 the state court clerk refused to file 

Rubio’s petition. It was the clerk’s “understanding,” the clerk advised 

Rubio, that civil commitment orders could be challenged only by “fil[ing] the 

proper paperwork” in federal court.

Regrettably for Rubio, he took the clerk’s legal advice. Rubio 

proceeded to file a habeas petition in federal district court under 28 U.S.C. 

§ 2254. That section, reasoned the district court, generally requires detainees 

like Rubio to exhaust all available state remedies before filing a federal habeas 

petition. Because no Texas appellate court had evaluated Rubio’s claims—

either directly on appeal or collaterally on habeas—the district court 

concluded that Rubio had not exhausted all his state remedies. So the district 

court dismissed Rubio’s petition without prejudice for him to do so. We 

granted Rubio a limited certificate of appealability. He now appeals pro se.

1 We note that the Supreme Court of Texas has held that a commitment proceeding 

is civil, not criminal. See In re Commitment of Fisher, 164 S.W.3d 637, 654 (Tex. 2005).

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II

Two obstacles block us from reviewing the merits of Rubio’s § 2254 

habeas petition. Simply put, Rubio has abandoned any argument that he 

exhausted his state remedies before filing this habeas petition—precisely why 

the district court denied his habeas petition in the first place. But even if he 

had not, we agree with the district court that Rubio has failed to exhaust his 

state remedies and that no exception applies.

A

We agree with Defendant that Rubio has abandoned his argument that 

the district court erred in concluding he hasn’t exhausted his state remedies.

The Rules of Appellate Procedure require appellants to include in the 

argument section of their briefs their “contentions and the reasons for them, 

with citations to the authorities and parts of the record on which the appellant 

relies,” as well as “for each issue, a concise statement of the applicable 

standard of review.” Fed. R. App. P. 28(a)(8). Not meeting that 

standard—in other words, inadequately briefing issues or arguments—causes 

them to be abandoned. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). 

And while we liberally construe the briefs of pro se litigants, Abdul–Alim Amin 

v. Universal Life Insurance Co. of Memphis, 706 F.2d 638, 640 n.1 (5th Cir. 

1983) (per curiam), they have no general immunity from abandoning issues 

or arguments on appeal, see Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). 

Nowhere did Rubio argue in his opening brief that the district court erred in 

concluding he had failed to exhaust his state remedies. Therefore, he has

abandoned the issue and we need not review it.

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B

Still, even if Rubio had preserved the exhaustion issue for our review, 

we agree with the district court that he has not exhausted his state remedies.

And because no exception to the exhaustion requirement applies, we cannot 

give Rubio the relief he seeks.

Federal courts generally cannot grant Rubio any relief under § 2254 

until he “has exhausted the remedies available in the courts of [Texas].”

§ 2254(b)(1)(A). The district court found that “no briefs were filed” in 

Rubio’s direct appeal before it was dismissed. And “[t]here is no evidence 

that Rubio sought a state writ of habeas corpus to challenge the civil 

commitment judgment” before he filed “this federal petition.” Nothing in 

the parties’ arguments or the record calls those findings into question. And 

while “interference by officials” can sometimes serve to resurrect a lost 

opportunity to pursue federal habeas relief, see Brown v. Allen, 344 U.S. 443, 

485–86 (1954),2 Rubio has not lost his opportunity. He simply has to exhaust 

his state remedies first.

Rubio mistakenly believes that we concluded otherwise when we 

granted his certificate of appealability. We did not. We merely held that 

“[r]easonable jurists could debate whether the district court erred” in not 

concluding that § 2254’s exceptions applied. Order at 3, Rubio v. Lumpkin, 

No. 20-20158 (5th Cir. Mar. 15, 2021) (dkt. 28) (emphasis added.) Those 

exceptions would allow us to reach the merits of Rubio’s petition if he could 

show that “there is an absence of available State corrective process,” or 

2 Relatedly, we note that Rubio’s argument is, essentially, one of equitable 

estoppel—that Texas, through a single court clerk, declared Rubio had exhausted his state 

remedies and so now it should be estopped from denying so. But that theory is “rarely valid 

against the government,” Linkous v. United States, 142 F.3d 271, 277 (5th Cir. 1998), and

Rubio does not adequately brief it in any event, see id. at 278 (outlining a four-part test).

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“circumstances exist that render such process ineffective to protect the 

rights of the applicant.” § 2254(b)(1)(B). But now the debate is over. Section 

2254’s exhaustion exceptions do not apply. Defendant argues that Rubio 

should have filed for civil habeas in Texas court before filing this petition.

Rubio has no good response. He merely argues that the “additional [habeas] 

filings” he has made in “the district court up-to the TX Supreme Court” 

have been “ignored.” But whether they have been ignored does not matter 

for this petition. What matters is that no record evidence supports that before

filing this petition, in 2014, Rubio could not avail himself of state corrective 

process or that such process would have been ineffective to protect his 

rights.3 Therefore, § 2254’s exhaustion exceptions cannot apply.

III

Rubio may not be getting relief today, but his habeas odyssey is not 

through. The district court left the door wide open for him to refile. If Rubio 

exhausts his state remedies and finds no relief, he might still find relief in 

federal court. Then again, he might not. Because procedural defects in 

Rubio’s petition prevent us from deciding either way, though, we AFFIRM.

3 We note that Rubio is, apparently, actively seeking habeas relief in state court. 

For example, the record suggests that he has an active habeas petition in Texas district 

court, and that he has filed additional petitions in the courts of appeal and the Supreme 

Court of Texas.

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