Green v. Gonzalez

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CARRICK DEWAYNE GREEN,
Petitioner,
versus
ED GONZALEZ,
Respondent.
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CIVIL ACTION NUMBER
4:25-cv-04170
JUDGE CHARLES ESKRIDGE
OPINION AND ORDER ON DISMISSAL
The petition by Petitioner Carrick Dewayne Green for
a federal writ of habeas corpus under 28 USC §2254 is
construed as brought under §2241. As so construed, it is
dismissed because he hasn’t exhausted available state
court remedies. Dkt 1.
1. Background
Petitioner proceeds here pro se. His petition, filed in
August 2025, alleges that he’s confined in the Harris
County Jail as a pretrial detainee. Publicly available
records show that he remains in jail, awaiting trial on a
charge of cruelty to non-livestock animals in Cause
Number 1925361. See Harris County District Clerk,
www.hcdistrictclerk.com (visited Jan 31, 2026).
The petition seems to allege that state officials violated
Petitioner’s rights under the Fourth Amendment during
his arrest. Dkt 1 at 7. It alleges that his due process rights
are being violated because there’s no evidence that he
committed the charged offense. Id at 5, 8. It also alleges
that he has been defamed by state and county officials
during the proceedings. Id at 10. Petitioner admits that he
hasn’t presented any of these claims either to the state trial
United States District Court
Southern District of Texas
ENTERED
February 06, 2026
Nathan Ochsner, Clerk
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court or to the highest state court with jurisdiction. Id
at 12.
As relief, he seeks an evidentiary hearing, a reduction
in his bail, and release from custody. Id. at 15.
2. Legal standard
Petitioner complains that he’s being illegally detained
prior to trial and seeks immediate discharge from custody.
But a petitioner may not seek pretrial habeas corpus relief
under 28 USC §2254, which “applies only to post-trial
situations and affords relief to a petitioner ‘in custody
pursuant to the judgment of a state court.’” Dickerson v
Louisiana, 816 F2d 220, 224 (5th Cir 1987), quoting
28 USC §2254(a) and (b). Inmates challenging their
pretrial confinement must instead proceed under 28 USC
§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.”
Dickerson, 816 F2d at 224; see also Braden v 30th Judicial
Circuit Court of Kentucky, 410 US 484 (1973). As such,
Petitioner’s petition is construed as a request for relief
under §2241(c).
Section 2241(c)(3) provides in relevant part that the
writ of habeas corpus “shall not extend to a prisoner
unless . . . He is in custody in violation of the constitution
or laws or treaties of the United States.” But in addition to
being in custody as required by statute, the Fifth Circuit
requires a petitioner seeking pretrial release under §2241
to have also “exhausted his available state remedies.”
Dickerson, 816 F2d at 224. More precisely, even though the
text of §2241 confers jurisdiction on federal courts to
consider pretrial habeas corpus petitions, federal courts
“should abstain” from exercising such 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, 816 F2d at 225
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(collecting cases). This judicially created exhaustion
requirement was “crafted on federalism grounds in order to
protect the opportunity of 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.” Ibid
(collecting cases); see also Brown v Estelle, 530 F2d 1280,
1283–84 (5th Cir 1976).
3. Analysis
When he filed this action, Petitioner was confined in
the Harris County Jail, where he remains. This satisfies
the in-custody requirement. But he hasn’t exhausted the
state remedies available to him on his claims.
Petitioner alleges that his constitutional rights were
violated during his arrest and have continued to be violated
during his detention. But these claims may be raised in his
state-court criminal proceedings, either before trial in the
trial court or on appeal if he’s convicted. For example, see
Villareal v State, 935 SW2d 134 (Tex Crim App 1996)
(Fourth Amendment claims); Hughes v State, 691 SW3d
504 (Tex Crim App 2024) (due process claims).
Petitioner admits that he hasn’t yet raised his claims
in his state-court proceedings or otherwise presented them
to the Texas Court of Criminal Appeals, which is the
highest state court with criminal-law jurisdiction. Publicly
available records confirm that he hasn’t done so. Therefore,
the state courts haven’t had a fair opportunity to consider
Petitioner’s constitutional claims.
The due administration of justice is best served here by
requiring exhaustion of the available state-court remedies.
4. Certificate of appealability
Rule 11 of the Rules Governing Section 2254 Cases
requires a district court to issue or deny a certificate of
appealability when entering a final order that is adverse to
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the petitioner. But “a COA is not required to appeal the
denial of a §2241 petition.” Hunter v Tamez, 622 F3d 427,
430 (5th Cir 2010), quoting Pack v Yusuff, 218 F3d 448, 451
n 3 (5th Cir 2000).
As such, a certificate of appealability needn’t be issued.
5. Conclusion
The petition for writ of habeas corpus filed by
Petitioner Carrick Dewayne Green is DISMISSED WITHOUT
PREJUDICE for failure to exhaust available state remedies
on his claims. Dkt 1.
All other pending motions are DENIED AS MOOT.
A certificate of appealability is NOT REQUIRED.
SO ORDERED.
Signed on , at Houston, Texas.
__________________________
Honorable Charles Eskridge
United States District Judge
February 03, 2026
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