Montano v. Texas, No. 16-20083 (5th Cir. 2017)Annotate this Case
Petitioner challenged the dismissal of his habeas petition based on failure to exhaust available state remedies. The Fifth Circuit reversed, holding that petitioner satisfied 28 U.S.C. 2241's exhaustion requirement because he asserted his Double Jeopardy claim before every available state judicial forum, short of undergoing a second trial. The court explained that requiring petitioner to endure a second prosecution before being able to assert his claim in federal court placed him in precisely the same impermissible position as the petitioner in Fain v. Duff, 488 F.2d 218 (5th Cir. 1973): forced to forfeit the protections of his federal right before being permitted to seek its vindication in federal court. Because the district court did not address petitioner's Double Jeopardy claim and because the record was not sufficiently developed to enable the court to do so in the first instance, the court did not address it. Therefore, the court remanded for adjudication of the Double Jeopardy claim.
The court issued a subsequent related opinion or order on September 1, 2017.