Ybanez v. Guerrero

1 / 11
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
RUBEN ANTONIO YBANEZ,
Petitioner,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 6:25-CV-00078
ERIC GUERRERO,
Respondent.
MEMORANDUM AND RECOMMENDATION
Petitioner Ruben Ybanez is a state prisoner incarcerated at the Duncan Unit in
Diboll, TX. (D.E. 1). Proceeding pro se, he filed this habeas corpus petition pursuant to
28 U.S.C. § 2254, challenging the calculation of his January 22, 2025, Victoria County
sentence for failure to register as a sex offender. (D.E. 1, Page 1). Pending is Respondent’s
Motion for Summary Judgment, asserting Petitioner has failed to properly exhaust his state
court remedies. (D.E. 12). Petitioner has failed to file a response and, pursuant to the local
rules, this is taken as a representation of no opposition to the pending Motion. For the
reasons stated below, it is respectfully recommended the Court GRANT Respondent’s
Motion for Summary Judgment (D.E. 12) and DISMISS this case. The undersigned further
recommends the Court DENY a Certificate of Appealability.
I. JURISDICTION
The Court has jurisdiction over the subject matter and the parties pursuant to 28
U.S.C. §§ 2241 and 2254. A habeas action may be filed either in the district where
United States District Court
Southern District of Texas
ENTERED
March 17, 2026
Nathan Ochsner, Clerk
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 1 of 11

2 / 11
petitioner is in custody or in the district in which petitioner was convicted. 28 U.S.C. §
2241(d); Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000). Jurisdiction and venue
are proper in this Court because Petitioner was convicted within the Victoria Division of
the Southern District of Texas. Id.; 28 U.S.C. § 124(b)(5). This case has been referred to
the undersigned pursuant to 28 U.S.C. § 636.
II. BACKGROUND
Petitioner pled guilty in the 377th Judicial District Court of Victoria County, Texas,
to failure to comply with sex offender registration requirements and on March 1, 2024, he
was sentenced to two years’ imprisonment. (D.E. 11, Pages 2-4). His current projected
release date is July 11, 2026.1 Petitioner did not file a petition for discretionary review or
a state habeas application. (D.E. 1). Petitioner alleges he filed a “Motion for Credit on
Sentence” on November 21, 2025, and it was denied the same day. (D.E. 1, Pages 3-4).
Petitioner filed the pending federal habeas petition on December 22, 2205. (D.E. 1, Page
15).
III. ANTITERRORISM AND EFFECTIVE DEATH PENATLY ACT OF 1996
(“AEDPA”) 28 U.S.C. §2254
Federal habeas relief is available to a state prisoner only if he is being held in
violation of the Constitution, laws, or treaties of the United States. Boyd v. Scott, 45 F.3d
876, 881 (5th Cir. 1994) (per curiam) (citation omitted). Under AEDPA, a state prisoner
1TDCJ inmate search https://inmate.tdcj.texas.gov/InmateSearch/viewDetail.action?sid=02250
431(last visited March 9, 2026).
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 2 of 11

3 / 11
may not obtain relief with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim:
(a) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(b) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d)
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by the U.S. Supreme Court on a
question of law or if the state court decides a case differently than the Court on a set of
materially indistinguishable facts. Under the “unreasonable application” clause, a federal
habeas court may grant the writ if the state court identifies the correct governing legal
principle from the Court’s decisions but unreasonably applies the principle to the facts of
the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). Although
“unreasonable” is difficult to define, the Court noted it is an objective, rather than
subjective, standard and emphasized that there is a critical difference between an
unreasonable application of federal law and a merely “incorrect” or “erroneous”
application of federal law. Neal v. Puckett, 239 F.3d 683, 687 (5th Cir. 2001)(citing
Williams, U.S. 362 at 412-413).
“A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fair minded jurists could disagree’ on the correctness of the state court’s
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 3 of 11

4 / 11
decision.” Harrington v. Richter, 562 U.S. 86, 88 (2011)(quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). A federal habeas court must determine what theories or
arguments supported, or could have supported, that state court’s decision. Then it must
ask whether it is possible that fair-minded jurists could disagree that the arguments or
theories are inconsistent with the holding in a prior decision of the Supreme Court.
Harrington, 562 U.S. at 88. Even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable. Id.(citing Lockyer v. Andrade, 538 U.S. 63, 75
(2003)).
The standard is very difficult to meet. “As amended by AEDPA, § 2254(d) stops
short of the imposing a complete bar on federal court litigation of claims already rejected
in state proceedings…It preserves authority to issue the writ in cases where there is no
possibility fair minded jurists could disagree that the state court’s decision conflicts with
this Court’s precedents. It goes no farther.” Id. “[A] state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fair minded disagreement.” Id. at 786-787. In addition, if a
decision by a state court is silent as to the reasons for the refusal, a federal habeas court
can “look through” the decision and evaluate the last reasoned state court decision.
Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999).
A state court’s factual findings are presumed to be correct, and a petitioner has the
burden of rebutting the presumption with clear and convincing evidence. Garcia v.
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 4 of 11

5 / 11
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006). This deference extends not only to
express findings of fact, but to the implicit findings of the state court. Id. In addition,
“where a state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no reasonable basis for the state
court to deny relief.” Harrington, 562 U.S. at 98.
IV. SUMMARY JUDGMENT
In deciding a motion for summary judgment, the district court must determine
whether there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56. Generally, Rule 56 applies to federal
habeas corpus cases. Clark v. Johnson, 202 F.3d 760, 764-65 (5th Cir. 2000). Once the
movant presents a properly supported motion for summary judgment the burden shifts to
the non-movant to present significant evidence of the existence of a genuine issue of
material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (citation
omitted). The court applies general summary judgment standards to the extent they do not
conflict with the AEDPA. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (“[Rule
56] applies only to the extent that it does not conflict with the habeas rules.”), abrogated
on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004). Considering these standards,
the undersigned has reviewed Petitioner’s claims and Respondent’s Motion for Summary
Judgment.
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 5 of 11

6 / 11
V. DISCUSSION
Petitioner challenges the calculation of his sentence, seeking credit for days served
prior to his indictment but after he was arrested. While Petitioner alleges he challenged
the calculation of his sentence in a state motion for post-conviction relief, Respondent
argues Petitioner’s claims should be dismissed for failure to exhaust state court remedies.
A petitioner must fully exhaust state remedies before seeking federal habeas relief
28 U.S.C. § 2254(b). To do so, a petitioner must fairly present the factual and legal basis
of any claim to the highest available state court for review prior to raising it in federal court.
See Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995); Deters v. Collins, 985 F.2d 789,
795 (5th Cir. 1993). In Texas, exhaustion requires claims be presented to the Court of
Criminal Appeals either in a petition for discretionary review or a state application for a
writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986).
Further, the Texas Court of Criminal Appeals has held that when a state trial court fails to
give an inmate pre-sentence jail time credit, the appropriate remedy is to raise the claim by
a motion for judgment nunc pro tunc. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim.
App. 2004); see Porter v. Davis, 2016 WL 6820469, at *2-3 (N.D. Tex. Oct. 11, 2016);
Tatum v. Stephens, 2013 WL 6231547, at *2 (N.D. Tex. Dec. 2, 2013). If the motion is
denied or the trial court fails to respond, “relief may be sought by filing an application for
writ of mandamus in a court of appeals.” Ex parte Florence, 319 S.W.3d 695, 696 (Tex.
Crim. App. 2010). Similarly, if the intermediate court of appeals denies the application,
an inmate may seek a writ of mandamus from the Texas Court of Criminal Appeals. Id.
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 6 of 11

7 / 11
In this case, Petitioner has failed to exhaust state judicial remedies because he has
not properly presented his claims to the Texas Court of Criminal Appeals. Even if
Petitioner’s “Motion for Credit on Sentence” is construed as a motion for judgment nunc
pro tunc, Petitioner does not allege he sought a writ of mandamus from the intermediate
court of appeals nor from the Texas Court of Criminal Appeals. (D.E. 1). Further,
Petitioner has not sought state habeas relief nor has he filed a PDR. (D.E. 1).
Federal habeas courts can only excuse exhaustion where there is “an absence of state
corrective process” or circumstances rendering that process “ineffective to protect the
rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). Nothing in the record suggests
Petitioner’s state remedies are inadequate, and Petitioner makes no such claim. Petitioner
is able to seek nunc pro tunc relief from the convicting court. Further, he is entitled to seek
writs of mandamus from both the intermediate state appeals court and the Texas Court of
Criminal Appeals if lower courts are unresponsive or fail to grant relief. Ex parte Florence,
319 S.W.3d at 696. Petitioner is also entitled to seek state habeas relief in the future. Id.
at 696. Petitioner has sufficient state judicial and administrative remedies to protect his
rights. Because the state has not been afforded a fair opportunity to consider the merits of
Petitioner’s claims, the undersigned recommends his claims are unexhausted for the
purposes of federal habeas review.
Additionally, the undersigned notes there is no absolute constitutional right to pre-
sentence detainment credit. The Fifth Circuit has held that “pre-sentence credit is not an
absolute constitutional right.” Jackson v. Alabama, 530 F.2d 1231, 1238 (5th Cir. 1976).
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 7 of 11

8 / 11
Absent a statute the granting of pre-sentence detainment credit is within the sentencing
judge’s discretion. See Gremillion v. Henderson, 425 F.2d 1293, 1294 (5th Cir. 1970);
Bayless v. Estelle, 583 F.2d 730, 732 (5th Cir. 1978). However, this principle is not
absolute. A state prisoner is constitutionally entitled to pre-sentence detainment credit if
he was held on a bailable offense, was unable to make bail due to indigency, and was
subsequently sentenced to the statutory maximum sentence for his offense. See Jackson,
530 F.2d at 1237 (citations omitted). However, when the time spent in pre-sentence
detainment and the total sentence do not exceed the statutory maximum, the Fifth Circuit
has established a “conclusive presumption that the sentencing judge gave credit for the pre-
sentence custody.” See Parker v. Estelle, 498 F.2d 625, 627 (5th Cir. 1974) (citations
omitted). The unfairness of using such a “mechanical calculation” is outweighed by the
resources saved. Bryans v. Blackwell, 387 F.2d 764, 767 (5th Cir. 1967). While the
presumption initially applied in federal court, the Fifth Circuit has extended it to state
proceedings as well. See Matthews v. Dees, 579 F.2d 929, 931 (5th Cir. 1978); Parker,
498 F.2d at 627.
VI. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the Court of Appeals from a final order in a habeas
corpus proceeding “unless a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(A). Although Petitioner has not yet filed a notice of appeal, it is
respectfully recommended that this Court nonetheless address whether he would be entitled
to a certificate of appealability (“COA”). A district court ruling on a petitioner’s relief may
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 8 of 11

9 / 11
sua sponte rule on a COA because it “is in the best position to determine whether the
petitioner has made a substantial showing of a denial of a constitutional right on the issues
before that court. Further briefing and argument on the very issues the court has just ruled
on would be repetitious.” Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per
curiam).
A COA “may issue...only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). As to claims
the Court rejects solely on their merits, “[t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As to claims the Court rejects solely
on procedural grounds, the Petitioner must show both that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. (emphasis added).
In Petitioner’s case, it is recommended that the Court find his claims be dismissed
on procedural grounds. Reasonable jurists would not find that Petitioner has stated a valid
claim of denial of a constitutional right or failure to exhaust in this case is debatable. If the
District Judge orders that Petitioner’s habeas petition be denied and Petitioner seeks a COA
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 9 of 11

10 / 11
in order to proceed with his case, it is further recommended that the Court find a COA be
denied because he has not made the necessary showing for issuance.
VII. RECOMMENDATION
It is respectfully RECOMMENDED that the Court GRANT Respondent’s Motion
for Summary Judgment (D.E. 12) and DISMISS this action as unexhausted. The
undersigned further RECOMMENDS the Court DENY a Certificate of Appealability.
Respectfully submitted on March 17, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 10 of 11

11 / 11
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
Case 6:25-cv-00078 Document 13 Filed 03/17/26 in TXSD Page 11 of 11