Barnes v. State of Texas
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Carolyn Barnes, 4 Secondary Supplemental Application for Writ of Habeas Corpus; Emergency MOTION Immediate Release; MOTION to Compel Record and Transcripts; MOTION for Reconsideration of Removal of Proceedings of case 1:11-cr-237 filed by Carolyn Barnes. Signed by Judge Andrew W. Austin. (jk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
STATE OF TEXAS
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The Honorable Lee Yeakel, United States District Judge
The Magistrate Court submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates Judges, as amended.
Before the Court are Petitioner Carolyn Barnes’s applications for habeas corpus relief
(Clerk’s Doc. Nos. 1, 4). Barnes1 also seeks leave to proceed in forma pauperis (Clerk’s Doc. No.
2). The Court finds Barnes indigent and therefore GRANTS Barnes’s motion to proceed in forma
pauperis. For the reasons set forth below, the undersigned finds that Barnes’s applications for writ
of habeas corpus should be dismissed without prejudice.
According to Barnes, she is incarcerated in the Williamson County Jail. She is being held
on criminal charges brought against her in Williamson County in Cause No. 10-663. Those charges
are currently pending; she has not yet been convicted or sentenced.
Barnes is a member of the Texas Bar. However, she has been declared incompetent in Texas
state court—and she has an attorney for her pending state criminal case—but she is representing
herself in this federal habeas petition.
She files the current petition for writ of habeas corpus by a person in state custody alleging
a litany of complaints: the judge is biased against her; her attorney is not adequately representing her
because he was hand-picked by the State; the State is selectively prosecuting her; the State is holding
her without bail and subjecting her to inhumane conditions; the State has denied constitutionally
required hearings; and the State deprived her of her Second Amendment rights by prohibiting her
from possessing firearms. Before being found incompetent, Barnes’s case was set for a jury trial on
June 13, 2011. She requests the Court to release her from custody on her personal recognizance.
It is well-established a state pre-trial detainee may challenge the power and authority of the
State to bring her to trial and the constitutionality or lawfulness of her present confinement by
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Dickerson v. Louisiana, 816 F.2d
220, 224 (5th Cir. 1987) (“Pre-trial petitions such as [Petitioner]’s are properly 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.”).
Under § 2241 “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 Judicial Circuit Court, 410 U.S. 484, 489 (1973). The
Supreme Court’s discussion in Braden shows this distinction typically turns on the type of relief
sought by a petitioner: “an attempt to dismiss an indictment or otherwise prevent a prosecution” is
normally not attainable through a federal habeas corpus action, while “an attempt to force the state
to go to trial” is, although a requirement of exhaustion of state remedies must be met. See Brown
v. Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976). Challenges to state court orders that denied release
on personal recognizance are also not normally heard in a federal habeas petition. See Gipson v.
Callahan, No. 97-51021, 1998 WL 611740, at *1, (5th Cir. Aug. 25, 1998) (per curiam)
(unpublished). Thus, absent “special circumstances” pre-trial habeas relief is available only to
enforce a state’s obligation to bring a defendant promptly to trial, not to adjudicate the merits of a
speedy trial claim under the Sixth Amendment and bar the state from proceeding to trial. Dickerson,
816 F.2d at 224.
In the present case, Barnes readily admits that she has not been convicted in state court. The
Court can find nothing in Barnes’s applications for writ of habeas corpus that indicates “special
circumstances” exist which would allow the Court to consider the merits of his claims before she
has been tried. Moreover, Barnes is required to show that she is “in custody” and has exhausted her
available state remedies in order to be eligible for habeas relief. Braden, 410 U.S. at 488–89;
Dickerson, 816 F.2d at 224. In the present case, Barnes represents that she is in custody in the
Williamson County Jail. However, she must also show that she has exhausted her state court
remedies, which she has not done.2 See Braden, 410 U.S. at 490.
Generally, the exhaustion requirement is satisfied only when all grounds urged in a federal
petition were previously presented to the state’s highest court in a procedurally proper manner.
Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Based on the information in the record, the state
Although § 2241 does not contain an express exhaustion requirement, exhaustion is
nevertheless required where pre-trial issues are concerned, under the theory that federal courts should
abstain from interfering with matters that are pending in the state courts “if the issues raised in the
petition may be resolved either by a trial on the merits in the state court or by other state procedures
available to the petitioner.” Dickerson, 816 F.2d at 225 (citing Braden, 410 U.S. at 489-92 (citations
omitted)). Thus, an exhaustion requirement for petitions filed under § 2241 has been “judicially
crafted on federalism grounds in order to protect the state courts’ opportunity to confront and resolve
initially any constitutional issues arising within their jurisdictions as well as to limit federal
interference in the state adjudicatory process.” Id. (citing Braden, 410 U.S. at 490-91).
courts have not had the opportunity to consider or resolve the issues Barnes raises. The exhaustion
requirement is obviated only if “special circumstances” exist, see Dickerson, 816 F.2d at 225 (citing
Braden, 410 U.S. at 489), which the Court has already found is not the case in the present action.
Therefore, absent a showing the highest state court with criminal law jurisdiction has been given a
fair opportunity to consider Barnes’s claims, comity requires this Court to defer.
In sum, Barnes’s applications for federal habeas corpus relief must be dismissed because her
claims are insufficient under Braden to justify federal habeas relief and because she has failed to
exhaust state remedies. Pre-trial habeas relief is not available to consider her claims 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.
It is therefore recommended that Petitioner’s Applications for Writ of Habeas Corpus be
dismissed without prejudice.
Within 14 days after receipt of the magistrate judge's report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 15th day of June, 2011.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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