McGhee v. Mooneyham
Filing
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MEMORANDUM OPINION AND ORDER: Petitioner Brendshon McGhee's habeas petition under 28 U.S.C. § 2241 is dismissed without prejudice for lack of jurisdiction. Even assuming jurisdiction, McGhee's petition is dismissed without prejudice as partially moot and for the failure to exhaust available remedies in his pending criminal case. (Ordered by Senior Judge Barbara M. G. Lynn on 1/28/2025) (agc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BRENDSHON MCGHEE,
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#05127510,
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Movant,
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No. 3:24-CV-1618-M
v.
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DEBERY MOONEYHAM,
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Respondent.
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MEMORANDUM OPINION AND ORDER
Based on the relevant filings and applicable law, the petitioner’s application for federal
habeas relief under 28 U.S.C. § 2241 is dismissed without prejudice.
I.
BACKGROUND
On May 24, 2022, the Government filed a superseding indictment in this District and
Division charging Brendshon McGhee (McGhee) with one count of conspiring to possess with
intent to distribute a controlled substance and one count of possession with intent to distribute a
controlled substance and aiding and abetting. See United States v. Brendshon McGhee, 22-cr-0145M-14; Crim. Doc. 35. McGhee’s criminal trial is set for March 24, 2025. See Crim. Doc. 706.
On June 27, 2024, McGhee, while incarcerated awaiting his criminal trial, filed the instant
pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking the dismissal of the
superseding indictment. Civ. Doc. 3 at 7. The Court understands him to raise the following grounds
for relief in the habeas petition, all of which stem from his ongoing federal criminal proceedings:
(1) Dallas Police Department officers illegally pulled him over and illegally searched
his vehicle, leading to evidence against him in the criminal case;
(2) He is being “targeted for selective prosecution” on racial grounds;
(3) The drugs underlying his federal criminal charges are “fake,” and he was indicted
before the “fake drugs” were tested;
(4) Evidence against him is “being fabricated”; and
(5) His court-appointed attorney in the criminal case refused to file pretrial motions,
including a motion for discovery or dismissal of the indictment and a motion to
suppress.
Civ. Doc. 3 at 9-10.
After McGhee filed the instant habeas application, the Court granted his court-appointed
attorney’s motion to withdraw in the criminal case and appointed a new attorney. See Crim. Docs.
641, 647.
Upon review, the Court concludes that it lacks subject matter jurisdiction over McGhee’s
petition. Even assuming jurisdiction, McGhee’s claim concerning his prior, since-withdrawn courtappointed attorney is moot, and he should be required to exhaust the remainder of his claims in his
ongoing criminal case. Therefore, the Court will dismiss this habeas petition.
II.
ANALYSIS
A. The Court lacks jurisdiction.
To entertain a habeas corpus petition under § 2241, the Court must have jurisdiction over
the prisoner or his custodian. Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001) (holding the district
of incarceration is the only district that has jurisdiction to entertain a § 2241 petition). A § 2241
habeas action “must be filed in the same district where the [petitioner] is incarcerated.” Pack v.
Yusoff, 218 F.3d 448, 451 (5th Cir. 2000) (citations omitted). McGhee is currently incarcerated in
the CoreCivic Cimarron Correctional Facility in Cushing, Oklahoma. He filed this action while
incarcerated in the Limestone County Detention Center, which lies within the boundaries of the
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Western District of Texas, Waco Division. 28 U.S.C. § 124(d)(2); Civ. Doc. 3 at 1. Therefore, the
Court lacks jurisdiction over his habeas corpus petition. Lee, 244 F.3d at 374-75.
B. McGhee’s claim concerning his prior attorney is moot, and he must exhaust his
remaining claims in his pending criminal proceedings.
Even assuming jurisdiction, the petition should be dismissed. A habeas corpus petition
under 28 U.S.C. § 2241 is subject to summary dismissal if it appears from the face of the petition
that the petitioner is not entitled to relief. See Wottlin v. Fleming, 136 F.3d 1032, 1034 (5th Cir.
1998) (affirming summary dismissal of § 2241 petition without ordering an answer from
respondent); see also Laster v. United States, 3:21-CV-2444-B-BK, 2021 WL 5336986, at *1 (N.D.
Tex. Oct. 21, 2021), rec. accepted 2021 WL 5331002 (N.D. Tex. Nov. 16, 2021).
“Pretrial habeas relief is available to a federal pretrial detainee only ‘in rare and exceptional
cases.’” Laster, 2021 WL 5336986, at *1 (citing Johnson v. Hoy, 227 U.S. 245, 247 (1913)). It is
well established that courts “should withhold relief…where an adequate remedy available in the
criminal proceeding has not been exhausted.” Stack v. Boyle, 342 U.S. 1, 6-7 (1951) (citations
omitted). Likewise, the United States Court of Appeals for the Fifth Circuit has adopted “‘the
settled principle that a writ of habeas corpus may not be used…as a substitute for the ordinary
proceedings of a trial court.’” United States v. Bowler, 62 F.3d 397, 1995 WL 449713, at *2 (5th
Cir. 1995) (per curiam) (quoting U.S. ex rel. Palma v. Saegert, 251 F.2d 59 (5th Cir. 1957)).
In Bowler, for example, two federal pretrial detainees filed a habeas application under §
2241, arguing that the district court should dismiss the indictment in the criminal case for lack of
subject matter jurisdiction. Id. at *1. They had previously moved to dismiss the indictment in the
criminal case, but the court denied the motion. The Fifth Circuit found that there were no
extraordinary circumstances warranting a pretrial writ of habeas corpus because the jurisdictional
issue could be litigated in the criminal case, and there was no “exigency, urgency, or any other
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reason,” for the court to allow the habeas petition as a substitute for direct appeal. Id. at *2. The
Fifth Circuit determined that the merits of the detainees’ arguments should be presented and
reached “‘in the orderly administration of justice.’” Id. (citing Saegert, 251 F.2d at 61).
Here, McGhee’s claim about his prior court-appointed attorney’s failure to file motions is
moot, as that attorney subsequently withdrew from McGhee’s representation, and the Court
appointed another attorney. See Crim. Docs. 641, 647.
As for McGhee’s remaining claims, all these claims, which are essentially challenges to
the indictment and the evidence in the criminal case, can be pursued in the criminal case, where
McGhee is represented by appointed counsel. McGhee must fully exhaust the remedies available
to him in his pending criminal case before seeking habeas relief, and, because he has not done so,
the petition will be dismissed. See, e.g., Bailey v. Cruz, No. 3:11-CV-1712-K (N.D. Tex. Aug. 3,
2011) (dismissing a § 2241 petition filed by a federal pretrial detainee for failing to exhaust his
remedies with respect to his speedy trial and conspiracy claims); Jallah v. Rivers, 2022 WL
18396031, at *2 (N.D. Tex. Dec. 1, 2022), rec. accepted 2023 WL 322545 (N.D. Tex. Jan. 19,
2023) (“Here, Petitioner has not challenged his indictment in the underlying criminal case, where
he is represented by appointed counsel, and § 2241 does not provide him an avenue to preempt the
ongoing criminal proceedings.”); see also In re Williams, 306 F. App’x 818 (4th Cir. 2009)
(dismissing § 2241 petition and noting that claims of illegal arrest, unlawful detention, and
violation of speedy trial rights could be raised in the pending criminal case); Horning v. Seifart,
107 F.3d 11 (6th Cir. 1997) (finding that § 2241 cannot be invoked to raise defenses to a pending
federal criminal prosecution).
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III.
CONCLUSION
Petitioner Brendshon McGhee’s habeas petition under 28 U.S.C. § 2241 is dismissed
without prejudice for lack of jurisdiction. Even assuming jurisdiction, McGhee’s petition is
dismissed without prejudice as partially moot and for the failure to exhaust available remedies
in his pending criminal case.
SO ORDERED on this 28th day of January, 2025.
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