Joseph Montano v. State of Texas
867 F.3d 540
| 5th Cir. | 2017Background
- Joseph Montano was tried in Texas on felony aggregate theft; the trial ended in a mistrial after a prosecution witness incriminated himself and invoked the Fifth Amendment.
- Texas sought to retry Montano; he challenged retrial on Double Jeopardy grounds in state habeas proceedings and was denied at all available state appellate levels.
- Montano filed a federal habeas petition under 28 U.S.C. § 2241 asserting retrial would violate the Double Jeopardy Clause; the district court dismissed for failure to exhaust state remedies, identifying Texas special-plea provisions as available remedies.
- The Fifth Circuit held Montano had exhausted state remedies because he had presented his Double Jeopardy claim to every available state judicial forum and requiring him to undergo a second trial would force him to suffer the exact injury the Clause protects against.
- The Fifth Circuit reversed the district court’s dismissal and remanded for adjudication of Montano’s Double Jeopardy claim, declining to resolve the merits because the district court had not reached them and the record was insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Montano exhausted state remedies before filing § 2241 | Montano argued he had exhausted all available state remedies by presenting his Double Jeopardy claim at every state judicial level and should not be forced to undergo retrial | Texas argued Montano had not used available trial-stage remedies (special plea under Tex. Crim. Proc. arts. 45.023, 27.05) and could seek appeal/post-conviction relief if retried and convicted | Held: Montano exhausted state remedies under Fifth Circuit precedent (Fain); dismissal for failure to exhaust reversed |
| Whether Montano’s § 2241 petition improperly seeks to derail prosecution (i.e., abstention/Dickerson) | Montano argued Double Jeopardy claim is properly presented pretrial and differs from Speedy Trial claims that seek dismissal merely to delay | Texas relied on Dickerson and Younger abstention to argue federal court should defer | Held: Double Jeopardy differs from Speedy Trial; Fain controls and pretrial federal review is appropriate where further state proceedings would require suffering the harm the Clause forbids |
| Whether the Texas special plea procedure could adequately protect Double Jeopardy rights | Montano argued the special plea is inadequate because jeopardy attaches when jury is empaneled and the plea’s resolution would occur after trial begins, offering no pretrial protection | Texas argued the special plea and post-trial remedies provide adequate state forums | Held: Special plea is inadequate to avoid the constitutional harm because it is only available after jeopardy attaches and would be decided at trial |
| Whether court should reach merits of Double Jeopardy claim on appeal | Montano asked the Fifth Circuit to decide the merits | Texas implicitly urged review or supported exhaustion finding | Held: Court declined to decide merits; remanded to district court because record was undeveloped and court of appeals reviews, not fact-finds |
Key Cases Cited
- Fain v. Duff, 488 F.2d 218 (5th Cir. 1973) (pretrial federal habeas exhaustion satisfied where petitioner presented Double Jeopardy claim at all state levels; forcing retrial would negate clause protection)
- Dickerson v. Louisiana, 816 F.2d 220 (5th Cir. 1987) (distinguished: Speedy Trial pretrial relief differs from Double Jeopardy, which bars prosecution)
- Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) (permits pretrial § 2241 for Speedy Trial claims where claim has been presented to state courts)
- United States v. Ball, 163 U.S. 662 (1896) (Double Jeopardy protects against being twice put in jeopardy, not merely double punishment)
- United States v. Jones, 733 F.3d 574 (5th Cir. 2013) (jeopardy attaches when jury is empaneled and sworn)