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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

HENRY MOORE

VS. 

SHERIFF DENTON COUNTY

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CIVIL ACTION NO. 4:23cv652

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner Henry Moore, proceeding pro se, filed the above-styled and numbered petition 

for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition was referred to the 

undersigned United States Magistrate Judge for findings of fact, conclusions of law, and 

recommendations for the disposition of the case pursuant to 28 U.S.C. § 636, and the Amended 

Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate 

Judge. 

I. BACKGROUND

Petitioner is in the custody of the Denton County Jail awaiting trial.1 He is challenging his 

pending state felony charge for aggravated assault with a deadly weapon and is seeking dismissal 

of “all pending offenses.” (Dkt. #1, p. 8). In his federal petition, Petitioner complains that he was 

improperly extradited from Tennessee to Texas, that his speedy trial rights have been violated, that 

the “indictment is not sufficient,” that he “has a defense to prosecution,” that his competency 

adjudication is a “false presumption,” and that his counsel rendered ineffective assistance. As he 

is a pre-trial detainee, Petitioner properly requested pre-trial habeas relief under 28 U.S.C. § 2241. 

See Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987) (“Pre-trial petitions . . . are properly 

1 A review of the online records for Denton County shows that Petitioner’s case has not yet been set for trial.

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brought under 28 U.S.C. § 2241, which applies to persons in custody regardless of whether final 

judgment has been rendered and regardless of the present status of the case pending against him.”). 

II. EXHAUSTION OF STATE REMEDIES

Federal courts may not consider pre-trial habeas corpus petitions from state prisoners 

unless all available state habeas corpus procedures have been exhausted. See Dickerson v. 

Louisiana, 816 F.2d 220, 225 (5th Cir. 1987). Furthermore, even if state procedures have been 

exhausted, “federal habeas corpus does not lie, absent ‘special circumstances,’ to adjudicate the 

merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a 

state court.” Braden v. 30th Jud. Cir. Ct. of Kentucky, 410 U.S. 484, 489 (1973).

To exhaust state remedies, a petitioner must “fairly present” all of his claims to the state 

court. Picard v. Connor, 404 U.S. 270, 275 (1971). The Fifth Circuit has made it clear that, in 

Texas, all claims must be presented to, and ruled on by, the Texas Court of Criminal Appeals. 

Deters v. Collins, 985 F.2d 789 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 430-31 

(5th Cir. 1985). State remedies are ordinarily not considered exhausted if the petitioner may 

effectively present his claims to state courts by any currently available and adequate means. 

Braden, 410 U.S. at 489. It should be noted that a federal habeas corpus petitioner fails to exhaust 

his state remedies when he relies on a different legal theory than that presented in state court, or 

when he makes the same legal claim to a federal court but supports the claim with factual 

allegations that he did not present to the state courts. Dispensa v. Lynaugh, 847 F.2d 211, 217 (5th 

Cir. 1987). 

In Texas, the proper procedures for pre-trial habeas corpus petitions are found in Tex. Code 

Crim. Proc. Ann. articles 11.08, 11.10, et seq. See also State v. Lee, 15 S.W.3d 921 (Tex. Crim. 

App. 2000); Smith v. Gohmert, 962 S.W.2d 590 (Tex. Crim. App. 1998); Shirley v. Sheriff, Smith 

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Cnty., No. CIVA 6:06CV75, 2006 WL 1720615, at *2 (E.D. Tex. June 20, 2006). Specifically, the 

Texas Code of Criminal Procedure provides that a person who is confined after indictment on a 

felony charge may apply for a writ of habeas corpus in the district court in which he is indicted. 

Tex. Code Crim. Proc. Ann. art. 11.08. If the trial court denies habeas relief under Article 11.08, 

the applicant can take a direct appeal to an intermediate appellate court and then petition for 

discretionary review by the Texas Court of Criminal Appeals. See, e.g., Ex parte Twyman, 716 

S.W.2d 951, 952 (Tex. Crim. App. 1986) (citing Ex parte Payne, 618 S.W.2d 380, 382 n.5 (Tex. 

Crim. App. 1981) (citations omitted)); Bingham v. King, No. 3:20-CV-1869-S-BK, 2020 WL 

5913670, at *2 (N.D. Tex. July 24, 2020), report and recommendation adopted, No. 3:20-CV1869-S-BK, 2020 WL 5913424 (N.D. Tex. Oct. 6, 2020).

A review of the online records for the Denton County District Court and the Texas appellate 

courts shows the following: on March 7, 2023, Petitioner filed a motion for habeas corpus in the 

Denton County District Court; on May 25, 2023, Petitioner filed another application for writ of 

habeas court in the Denton County District Court; on July 12, 2023, the Texas Court of Criminal 

Appeals denied without written order Petitioner’s motion for leave to file an original application 

for writ of habeas corpus, Case No. WR-94,765-01; and on December 6, 2023, the Texas Court of 

Criminal Appeals again denied without written order Petitioner’s second motion for leave to file 

an original application for writ of habeas corpus, Case No. WR-94,765-02. “A denial of a motion 

for leave to file is not a ruling on the merits of a writ of habeas corpus.” Hutchinson v. Sheriff, 

Collin Cnty., No. 4:11CV394, 2011 WL 2601524, at *1 (E.D. Tex. June 30, 2011). As discussed

above, the proper procedures for pre-trial habeas corpus petitions can be found in articles 11.08, 

11.10, et seq. of the Texas Code of Criminal Procedure.

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Furthermore, if a Texas criminal defendant’s right to a speedy trial has been violated, he 

may file a motion to set aside the indictment pursuant to Article 27.03 of the Texas Code of 

Criminal Procedure. See Smith v. Gohmert, 962 S.W.2d 590, 593 (Tex. Crim. App. 1998). Or he 

may assert his right to a speedy trial in a petition for writ of mandamus to the Texas Court of 

Criminal Appeals. See Chapman v. Evans, 744 S.W.2d 133, 138 (Tex. Crim. App. 1988) (granting 

the relator’s request for a writ of mandamus to compel the district court to set his case for trial); 

Thomas v. Stevenson, 561 S.W.2d 845, 846-47 (Tex. Crim. App. 1978) (concluding that the Texas 

Court of Criminal Appeals has authority to issue writs of mandamus to compel a speedy trial in a 

criminal case); see also Smith v. Gohmert, 962 S.W.2d 590, 593 & n.7 (Tex. Crim. App. 1998) 

(distinguishing between the availability of mandamus relief to compel a speedy trial from the 

availability of mandamus relief to compel dismissal on speedy trial grounds, the latter of which is 

not available). To the extent Petitioner complains about undue delay, Texas has adequate and 

effective state procedures for obtaining a speedy trial. Petitioner does not indicate, and the online 

state court records do not show, that he has filed a formal motion for a speedy trial. Thus, it appears 

that neither the trial court nor the Texas Court of Criminal Appeals has had the opportunity to 

resolve this issue. 

Petitioner has not exhausted all habeas corpus remedies available in state court. The Fifth 

Circuit Court of Appeals has held that in a pre-trial application for a writ of habeas corpus, federal 

courts must abstain from the exercise of jurisdiction if the issues raised in the petition may be 

resolved either by a trial on the merits in state court or by other state procedures available to the 

petitioner. Dickerson, 816 F.2d at 225. Petitioner fails to show an absence of available state court 

corrective processes or circumstances rendering such processes ineffective to protect his rights. 

Graham v. Johnson, 94 F.3d 958, 969 (5th Cir. 1996). Because federal courts may not consider 

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pre-trial habeas corpus petitions from state prisoners unless all available state habeas corpus 

procedures have been exhausted, Dickerson 816 F.2d at 225, the § 2241 petition should be 

dismissed for failure to exhaust state habeas corpus remedies.

Furthermore, even if Petitioner had exhausted all of his state pre-trial habeas corpus 

remedies, relief should be denied because the claims raised by him do not constitute “special 

circumstances” warranting federal pre-trial habeas corpus relief. See Braden, 410 U.S. at 489; 

Dickerson 816 F.2d at 229; Hutchinson, No. 4:11CV394, 2011 WL 2601524, at *2. The Supreme 

Court made a distinction between a petitioner seeking to “abort a state proceeding or to disrupt the 

orderly functioning of state judicial processes” when litigating a speedy trial defense before the 

petitioner goes to trial, see Braden, 410 U.S. at 490, and “one who seeks only to enforce the state’s 

obligation to bring him promptly to trial,” id. (citing Smith v. Hooey, 393 U.S. 374 (1969)). The 

Fifth Circuit in Brown v. Estelle, 530 F.2d 1280, 1282-83 (5th Cir. 1976), held that the distinction

is based on the type of relief requested by the petitioner. If the petitioner is attempting to prevent 

the prosecution of the case, then he is seeking to “abort a state proceeding or to disrupt the orderly 

functioning of state judicial processes.” Id. If the petitioner is attempting to “force the state to go 

to trial,” then he is merely seeking to force the state to fulfill its obligation to provide petitioner 

with a prompt trial. See id. Based on Petitioner’s request to dismiss “all pending offenses,” it 

appears that Petitioner is attempting to “abort a state proceeding or disrupt the orderly functioning 

of state judicial processes.” Id. Therefore, habeas corpus is not an available remedy.

In sum, Petitioner’s petition for federal habeas corpus relief should be dismissed without 

prejudice because he has failed to exhaust state remedies and his claims are insufficient under 

Braden to justify federal habeas relief. Pre-trial habeas relief is not available to consider his claims 

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under the circumstances of this case, as federal habeas relief should not be used as a “pre-trial 

motion forum for state prisoners.” Dickerson, 816 F.2d at 229.

III. RECOMMENDATION

It is recommended that the petition for writ of habeas corpus be dismissed without 

prejudice.

Within fourteen days after service of the magistrate judge’s report, any party must serve 

and file specific written objections to the findings and recommendations of the magistrate judge. 

28 U.S.C. § 636(b)(1)(C). 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 party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

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