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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

JUSTIN McMURTRY §

v. § CIVIL ACTION NO. 6:24cv25

SHERIFF, GREGG COUNTY §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Petitioner Justin McMurtry, proceeding pro se, filed this application for the writ of 

habeas corpus under 28 U.S.C. §2254 challenging the legality of his confinement pending 

prosecution. The petition was referred to the undersigned United States Magistrate Judge pursuant 

to 28 U.S.C. 636(b)(1) and (3) and Local Rule CV-72 of the Local Rules of Court for the Eastern 

District of Texas.

In his amended petition, Petitioner contends that an excessive bond was set for him. On 

February 5, 2024, Petitioner was ordered to pay the statutory $5.00 filing fee or to provide an 

application for leave to proceed in forma pauperis which was accompanied by a certified inmate 

trust account data sheet, as required by 28 U.S.C. §1915. A copy of this order was sent to Petitioner 

at his last known address, but to date, he has not complied, nor has he responded in any way. The 

Fifth Circuit has explained that where a letter is properly placed in the United States mail, a 

presumption exists that the letter reached its destination in the usual time and was actually received 

by the person to whom it was addressed. Faciane v. Sun Life Assurance Company of Canada, 931 

F.3d 412, 420-21 and n.9 (5th Cir. 2019).

A district court may dismiss an action for failure of a litigant to prosecute or to comply with 

any order of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988); Fed. R. Civ.

P. 41(b). Such a dismissal may be done sua sponte and appellate review is confined to whether the 

district court abused its discretion in dismissing the action. Id., citing Link v. Wabash Railroad Co.,

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70 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89 (1962). Petitioner’s failure to prosecute his case or to 

comply with orders of the Court is demonstrated by his failure to pay the statutory filing fee or to 

seek leave to proceed in forma pauperis.

Dismissal with prejudice for failure to prosecute or to obey an order of the Court is an 

extreme sanction which should be employed only when "the plaintiff's conduct has threatened the 

integrity of the judicial process [in a way which] leav[es] the Court no choice but to deny that 

plaintiff its benefit." McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988), citing Rogers v.Kroger 

Co., 669 F.2d 317, 321 (5th Cir. 1982). A court should consider lesser sanctions, such as fines, 

costs, damages, conditional dismissals, and dismissals without prejudice, among other lesser 

measures, prior to dismissing an action with prejudice. McNeal, 842 F.2d at 793.

Petitioner’s failure to comply with the Court’s orders is not an action which threatens the 

judicial process, rendering dismissal with prejudice unwarranted. The imposition of fines and costs 

is not appropriate given the status and nature of this case. The on-line records of Gregg County 

indicate that Petitioner is still confined in the Gregg County Jail, so he can refile his petition, if he 

chooses, within the statute of limitations. As a result, his lawsuit may be dismissed without 

prejudice for failure to prosecute or to obey an order of the Court.

In addition, Petitioner did not exhaust his state remedies as required before seeking federal 

habeas corpus relief. Dickerson v. State of Louisiana, 816 F.2d 220, 224 (5th Cir. 1987). A pretrial 

detainee wishing to challenge the amount of his bail may file an application for the writ of habeas 

corpus in the state court in which he has been indicted. Tex. Code Crim. Pro. art. 11.08, 11.24. If 

the trial court denies the application, the detainee may appeal to an intermediate appellate court and 

then petition for discretionary review to the Texas Court of Criminal Appeals. See Morris v. 

Gonzalez, civil action no. 4:23cv871, 2023 U.S. Dist. LEXIS 49212, 2023 WL 2616020 (S.D.Tex., 

March 23, 2023). The online records of the Texas judiciary do not show any appeals or petitions 

filed by Petitioner in the state intermediate appellate courts or the Texas Court of Criminal Appeals, 

meaning that he has not presented his claims to the highest court for the State of Texas as required

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to exhaust hisstate remedies. Johnson v. Cain, 712 F.3d 227, 231 (5th Cir. 2013). His petition may 

be dismissed without prejudice on this basis as well.

RECOMMENDATION

It is accordingly recommended that the above-styled civil action be dismissed without 

prejudice for failure to exhaust state remedies and failure to prosecute or to obey an order of the 

Court.

A copy of these findings, conclusions and recommendations shall be served on all partiesin 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

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 proposed findings, conclusions, and recommendation where the disputed determination is 

found. An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

So ORDERED and SIGNED this 13th day of March, 2024.

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