Montano v. Texas

• Decision Date: 11 August 2017
• Docket Number: No. 16-20083,16-20083
• Citation: 867 F.3d 540
• Parties: Joseph MONTANO, Petitioner–Appellant, v. State of TEXAS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

867 F.3d 540

Joseph MONTANO, Petitioner–Appellant,

v.State of TEXAS, Respondent–Appellee.

No. 16-20083

United States Court of Appeals, Fifth Circuit.

FILED August 11, 2017

Raymond Coldren, Houston, TX, for Petitioner–Appellant.

Meagan T. Scott, Brian Lynn Rose, Assistant General Counsel, District Attorney's Office for the County of Harris, Houston, TX, for Respondent–Appellee.

Before JOLLY and ELROD, Circuit Judges, and STARRETT, District Judge.^*

JENNIFER WALKER ELROD, Circuit Judge:

Joseph Montano's felony trial was terminated when the state trial judge declared a mistrial after a witness invoked his Fifth Amendment right against self-incrimination while testifying at trial. After Texas determined to retry him, Montano unsuccessfully sought relief in Texas court, arguing that a retrial would violate his rights under the Fifth Amendment's Double Jeopardy Clause. Montano then filed a habeas petition in federal district court, but the district court dismissed his habeas petition without prejudice for failure to exhaust available state remedies. Because Montano has exhausted all available state remedies in accordance with our precedent, we REVERSE the dismissal of his habeas petition and REMAND for adjudication of his Double Jeopardy claim.

I.

Joseph Montano was indicted in Harris County, Texas, for the felony offense of aggregate theft from a nonprofit. His trial began in September 2013, but never reached fruition. Instead, the state trial judge declared a mistrial after a prosecution witness incriminated himself during cross-examination and thereafter invoked his Fifth Amendment right against self- incrimination. Texas determined to retry Montano on the same charge.

Montano sought habeas relief in state court, arguing that a retrial would violate the Fifth Amendment's Double Jeopardy Clause.¹ The state habeas court denied relief, as did the court of appeals, the latter concluding that Montano had consented to a mistrial. See Ex parte Montano , 451 S.W.3d 874, 877–80 (Tex. App.—Houston [1st Dist.] 2014, pet ref'd). The Texas Court of Criminal Appeals denied Montano's petition for review as well as his subsequent motion for rehearing.

Montano then filed a habeas petition in federal court under 28 U.S.C. § 2241, arguing again that a retrial would violate the Double Jeopardy Clause. The federal district court determined that Montano failed to exhaust all available state remedies as is required before a federal district court may entertain a Section 2241 petition. In particular, the district court cited two provisions of the Texas Code of Criminal Procedure that allow a defendant to submit a special plea of Double Jeopardy at trial. See Tex. Crim. Proc. Code arts. 45.023(a)(3), 27.05. If Montano entered the special plea and was convicted, the district court concluded, he would "have the opportunity to appeal that conviction in state court and, if unsuccessful, to seek state habeas relief." The district court dismissed his Section 2241 petition without prejudice, and Montano timely appealed.

II.

"We review for abuse of discretion a dismissal of a § 2241 petition for failure to exhaust administrative remedies." Gallegos–Hernandez v. United States , 688 F.3d 190, 194 (5th Cir. 2012) ; see also Fuller v. Rich , 11 F.3d 61, 62 (5th Cir. 1994) (same). Any factual issues underlying the district court's decision are reviewed for clear error and issues of law are reviewed de novo . Gallegos–Hernandez , 688 F.3d at 194 ; see also Jeffers v. Chandler , 253 F.3d 827, 830 (5th Cir. 2001).

III.

Montano raises two arguments on appeal. First, he contends that the federal district court was wrong to conclude that he failed to exhaust available state remedies. Second, he argues the merits of his Double Jeopardy claim.

A.

Unlike 28 U.S.C. § 2254, Section 2241's text does not require exhaustion. However, it has long been settled that a Section 2241 petitioner must exhaust available state court remedies before a federal court will entertain a challenge to state detention. As we explained before,

[d]espite the absence of an exhaustion requirement in the statutory language of section 2241(c)(3), a body of case law has developed holding that although section 2241 establishes jurisdiction in the federal courts to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner.

Dickerson v. Louisiana , 816 F.2d 220, 225 (5th Cir. 1987) ; see also Rourke v. Thompson , 11 F.3d 47, 49 (5th Cir. 1993). At the same time, we have recognized that "[e]xceptions to the exhaustion requirement are appropriate where the available ... remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action." Fuller , 11 F.3d at 62 ; see also Gallegos–Hernandez , 688 F.3d at 194 (same).

The district court determined that Montano still had state remedies available to him that he was required to exhaust before utilizing Section 2241. Specifically, the district court concluded that Montano had failed to exhaust Articles 45.023² and 27.05 ³ of the Texas Code of Criminal Procedure, which allow a defendant to enter a special plea of Double Jeopardy at trial. The district court further reasoned that "[i]f Montano is retried and convicted, he will have the opportunity to appeal that conviction in state court and, if unsuccessful, to seek state habeas relief."

We disagree. In Fain v. Duff , 488 F.2d 218 (5th Cir. 1973), reh'g en banc denied , (5th Cir. Mar. 1, 1974), we confronted this precise issue. There, Florida sought to try a defendant (Fain) for rape after he had already been adjudicated delinquent for the same offense. Id . at 220–21. After having raised a Double Jeopardy challenge at every level of the state judiciary and ultimately not prevailed, Fain brought a Section 2241 petition in federal district court raising the same claim, and the district court granted relief. Id . at 221.

We held that Fain satisfied Section 2241's exhaustion requirement because he had raised and received a ruling on his Double Jeopardy claim at every level of the state judiciary; there was, then, "nothing more for the courts of Florida to say on [the] issue." Id . at 224. We acknowledged that "a petition for habeas corpus relief could be brought after the trial in state court," and that this would "leav[e] open the possibility that a finding of not guilty in state court would make resort to federal habeas corpus unnecessary." Id . (emphasis added). Despite this, we concluded that requiring a defendant to endure a second prosecution in order to fully exhaust a Double Jeopardy claim was incompatible with the nature of the Double Jeopardy Clause's protection:

Fain is not asserting merely a federal defense to a state prosecution. He is asserting a constitutional right not to be twice put in jeopardy for the same offense. Although double jeopardy (if shown) would certainly be a proper defense to assert at trial and in postconviction proceedings, the right consists of more than having the second conviction set aside. It consists of being protected from having to undergo the rigors and dangers of a second-illegal-trial. Double jeopardy is not a mere defense to a criminal charge; it is a right to be free from a second prosecution , not merely a second punishment for the same offense.... The prohibition of the Double Jeopardy Clause is "not against being twice punished, but against twice being put in jeopardy."

Id . (quoting United States v. Ball , 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) ). So, because Fain had pressed his Double Jeopardy claim at every level of the state judiciary up to the point of enduring a second trial, we held that he had fully exhausted his state remedies, even though he could be acquitted at trial or obtain relief through post-trial state proceedings. Id .

We hold, in accordance with Fain , that Montano has satisfied Section 2241's exhaustion requirement. There is no dispute that Montano has asserted his Double Jeopardy claim before every available state judicial forum, short of undergoing a second trial. Requiring Montano to endure a second prosecution before being able to assert his claim in federal court places him in precisely the same impermissible position as the petitioner in Fain : forced to forfeit the protections of his federal right before being permitted to seek its vindication in federal court.

The district court identified several state remedies that Montano had yet to exhaust. First, it observed that "[i]f Montano is retried and convicted, he will have the opportunity to appeal that conviction in state court and, if unsuccessful, to seek state habeas relief." That, however, is precisely the argument we rejected in Fain . See id . There, as here, the fact that Montano might prevail at trial—or in a post-trial proceeding—cannot provide relief, and is not a "remedy" in any meaningful sense, since the Double Jeopardy Clause protects against "having to undergo the rigors and dangers of a second-illegal-trial" in the first place. Id .

Second, the district court concluded that Montano could have availed himself of the special plea of Double Jeopardy provided by Texas law. See Tex. Crim. Proc. Code arts. 45.023, 27.05. Article 45.023 of the Texas Code of Criminal Procedure provides in relevant part that "[a]fter the jury is impaneled ... the defendant may ... enter the special plea of double jeopardy as described in Article 27.05." Tex. Crim. Proc. Code art. 45.023 (emphasis added). Texas law elsewhere provides that "[a]ll issues of fact presented by a special plea shall be tried by the trier of the facts on the trial on the merits ." Tex. Crim. Proc. Code art. 27.07 (emphasis added).

These provisions, however, do not solve the fundamental problem...