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                       REVISED September 1, 2017

          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 16-20083                             FILED
                                                                       August 11, 2017

JOSEPH MONTANO,                                                         Lyle W. Cayce
                                                                             Clerk
              Petitioner – Appellant,

v.

STATE OF TEXAS,

              Respondent – Appellee.




                  Appeal from the United States District Court
                       for the Southern District of Texas


Before JOLLY and ELROD, Circuit Judges, and STARRETT, District Judge.*
JENNIFER WALKER ELROD, Circuit Judge:
      Joseph Montano’s felony trial was terminated when the state trial judge
declared a mistrial after a witness invoked his Fifth Amendment right against
self-incrimination while testifying at trial. After Texas determined to retry
him, Montano unsuccessfully sought relief in Texas court, arguing that a
retrial would violate his rights under the Fifth Amendment’s Double Jeopardy
Clause. Montano then filed a habeas petition in federal district court, but the


      *  District Judge of the United States District Court for the Southern District of
Mississippi, sitting by designation.
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district court dismissed his habeas petition without prejudice for failure to
exhaust available state remedies. Because Montano has exhausted all
available state remedies in accordance with our precedent, we REVERSE the
dismissal of his habeas petition and REMAND for adjudication of his Double
Jeopardy claim.
                                             I.
       Joseph Montano was indicted in Harris County, Texas, for the felony
offense of aggregate theft from a nonprofit. His trial began in September 2013,
but never reached fruition. Instead, the state trial judge declared a mistrial
after a prosecution witness incriminated himself during cross-examination and
thereafter invoked his Fifth Amendment right against self-incrimination.
Texas determined to retry Montano on the same charge.
       Montano sought habeas relief in state court, arguing that a retrial would
violate the Fifth Amendment’s Double Jeopardy Clause. 1 The state habeas
court denied relief, as did the court of appeals, the latter concluding that
Montano had consented to a mistrial. See Ex parte Montano, 451 S.W.3d 874,
877–80 (Tex. App.—Houston [1st Dist.] 2014, pet ref’d). The Texas Court of
Criminal Appeals denied Montano’s petition for review as well as his
subsequent motion for rehearing.
       Montano then filed a habeas petition in federal court under 28 U.S.C.
§ 2241, arguing again that a retrial would violate the Double Jeopardy Clause.
The federal district court determined that Montano failed to exhaust all
available state remedies as is required before a federal district court may
entertain a Section 2241 petition. In particular, the district court cited two
provisions of the Texas Code of Criminal Procedure that allow a defendant to



       1The Double Jeopardy Clause provides that “[n]o person shall be . . . subject for the
same offense to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V.
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submit a special plea of Double Jeopardy at trial. See Tex. Crim. Proc. Code
arts. 45.023(a)(3), 27.05. If Montano entered the special plea and was
convicted, the district court concluded, he would “have the opportunity to
appeal that conviction in state court and, if unsuccessful, to seek state habeas
relief.” The district court dismissed his Section 2241 petition without prejudice,
and Montano timely appealed.
                                       II.
      “We review for abuse of discretion a dismissal of a § 2241 petition for
failure to exhaust administrative remedies.” Gallegos-Hernandez v. United
States, 688 F.3d 190, 194 (5th Cir. 2012); see also Fuller v. Rich, 11 F.3d 61, 62
(5th Cir. 1994) (same). Any factual issues underlying the district court’s
decision are reviewed for clear error and issues of law are reviewed de novo.
Gallegos-Hernandez, 688 F.3d at 194; see also Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001).
                                       III.
      Montano raises two arguments on appeal. First, he contends that the
federal district court was wrong to conclude that he failed to exhaust available
state remedies. Second, he argues the merits of his Double Jeopardy claim.
                                       A.
      Unlike 28 U.S.C. § 2254, Section 2241’s text does not require exhaustion.
However, it has long been settled that a Section 2241 petitioner must exhaust
available state court remedies before a federal court will entertain a challenge
to state detention. As we explained before,
      [d]espite the absence of an exhaustion requirement in the
      statutory language of section 2241(c)(3), a body of case law has
      developed holding that although section 2241 establishes
      jurisdiction in the federal courts to consider pre-trial habeas
      corpus petitions, federal courts should abstain from the exercise of
      that jurisdiction if the issues raised in the petition may be resolved

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       either by trial on the merits in the state court or by other state
       procedures available to the petitioner.
Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987); see also Rourke v.
Thompson, 11 F.3d 47, 49 (5th Cir. 1993). At the same time, we have recognized
that “[e]xceptions to the exhaustion requirement are appropriate where the
available . . . remedies either are unavailable or wholly inappropriate to the
relief sought, or where the attempt to exhaust such remedies would itself be a
patently futile course of action.” Fuller, 11 F.3d at 62; see also Gallegos-
Hernandez, 688 F.3d at 194 (same).
       The district court determined that Montano still had state remedies
available to him that he was required to exhaust before utilizing Section 2241.
Specifically, the district court concluded that Montano had failed to exhaust
Articles 45.023 2 and 27.05 3 of the Texas Code of Criminal Procedure, which
allow a defendant to enter a special plea of Double Jeopardy at trial. The
district court further reasoned that “[i]f Montano is retried and convicted, he
will have the opportunity to appeal that conviction in state court and, if
unsuccessful, to seek state habeas relief.”
       We disagree. In Fain v. Duff, 488 F.2d 218 (5th Cir. 1973), reh’g en banc
denied, (5th Cir. Mar. 1, 1974), we confronted this precise issue. There, Florida



       2Article 45.023 provides: “(a) After the jury is impaneled, or after the defendant has
waived trial by jury, the defendant may: . . . (3) enter the special plea of double jeopardy as
described in Article 27.05.”
       3   Article 27.05 provides:
       A defendant’s only special plea is that he has already been prosecuted for the
       same or a different offense arising out of the same criminal episode that was
       or should have been consolidated into one trial, and that the former
       prosecution: (1) resulted in acquittal; (2) resulted in conviction; (3) was
       improperly terminated; or (4) was terminated by a final order or judgment for
       the defendant that has not been reversed, set aside, or vacated and that
       necessarily required a determination inconsistent with a fact that must be
       established to secure conviction in the subsequent prosecution.
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sought to try a defendant (Fain) for rape after he had already been adjudicated
delinquent for the same offense. Id. at 220–21. After having raised a Double
Jeopardy challenge at every level of the state judiciary and ultimately not
prevailed, Fain brought a Section 2241 petition in federal district court raising
the same claim, and the district court granted relief. Id. at 221.
      We held that Fain satisfied Section 2241’s exhaustion requirement
because he had raised and received a ruling on his Double Jeopardy claim at
every level of the state judiciary; there was, then, “nothing more for the courts
of Florida to say on [the] issue.” Id. at 224. We acknowledged that “a petition
for habeas corpus relief could be brought after the trial in state court,” and that
this would “leav[e] open the possibility that a finding of not guilty in state court
would make resort to federal habeas corpus unnecessary.” Id. (emphasis
added). Despite this, we concluded that requiring a defendant to endure a
second prosecution in order to fully exhaust a Double Jeopardy claim was
incompatible with the nature of the Double Jeopardy Clause’s protection:
      Fain is not asserting merely a federal defense to a state
      prosecution. He is asserting a constitutional right not to be twice
      put in jeopardy for the same offense. Although double jeopardy (if
      shown) would certainly be a proper defense to assert at trial and
      in postconviction proceedings, the right consists of more than
      having the second conviction set aside. It consists of being
      protected from having to undergo the rigors and dangers of a
      second-illegal-trial. Double jeopardy is not a mere defense to a
      criminal charge; it is a right to be free from a second prosecution,
      not merely a second punishment for the same offense . . . . The
      prohibition of the Double Jeopardy Clause is “not against being
      twice punished, but against twice being put in jeopardy.”
Id. (quoting United States v. Ball, 163 U.S. 662, 669 (1896)). So, because Fain
had pressed his Double Jeopardy claim at every level of the state judiciary up
to the point of enduring a second trial, we held that he had fully exhausted his
state remedies, even though he could be acquitted at trial or obtain relief
through post-trial state proceedings. Id.
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      We hold, in accordance with Fain, that Montano has satisfied Section
2241’s exhaustion requirement. There is no dispute that Montano has asserted
his Double Jeopardy claim before every available state judicial forum, short of
undergoing a second trial. Requiring Montano to endure a second prosecution
before being able to assert his claim in federal court places him in precisely the
same impermissible position as the petitioner in Fain: forced to forfeit the
protections of his federal right before being permitted to seek its vindication in
federal court.
      The district court identified several state remedies that Montano had yet
to exhaust. First, it observed that “[i]f Montano is retried and convicted, he will
have the opportunity to appeal that conviction in state court and, if
unsuccessful, to seek state habeas relief.” That, however, is precisely the
argument we rejected in Fain. See id. There, as here, the fact that Montano
might prevail at trial—or in a post-trial proceeding—cannot provide relief, and
is not a “remedy” in any meaningful sense, since the Double Jeopardy Clause
protects against “having to undergo the rigors and dangers of a second-illegal-
trial” in the first place. Id.
      Second, the district court concluded that Montano could have availed
himself of the special plea of Double Jeopardy provided by Texas law. See Tex.
Crim. Proc. Code arts. 45.023, 27.05. Article 45.023 of the Texas Code of
Criminal Procedure provides in relevant part that “[a]fter the jury is impaneled
. . . the defendant may . . . enter the special plea of double jeopardy as described
in Article 27.05.” Tex. Crim. Proc. Code art. 45.023 (emphasis added). Texas
law elsewhere provides that “[a]ll issues of fact presented by a special plea
shall be tried by the trier of the facts on the trial on the merits.” Tex. Crim. Proc.
Code art. 27.07 (emphasis added).
      These provisions, however, do not solve the fundamental problem
identified in Fain. It is well-established that, “[f]or a jury trial, jeopardy
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                                        No. 16-20083
attaches when the jury is empaneled and sworn.” United States v. Jones, 733
F.3d 574, 580 (5th Cir. 2013). These provisions of the Texas Code of Criminal
Procedure are crystal clear that a special plea of Double Jeopardy may only be
entered after the jury is impaneled and that the jury will not decide the merits
of the special plea until the end of trial. The special plea is therefore just as
incapable of protecting Montano’s Double Jeopardy right as is the potential for
acquittal at trial or post-trial proceedings. 4
       Texas relies on Dickerson v. Louisiana, 816 F.2d 220 (5th Cir. 1987) and
Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), but to
no avail. Braden held that a defendant could bring a Speedy Trial Clause claim
in a Section 2241 petition prior to trial. 410 U.S. at 489–93. In finding Section
2241’s exhaustion requirement satisfied, the Supreme Court observed, first,
that the defendant had presented his federal constitutional claim to the state
courts, and second, that the defendant was not seeking to “forestall a state
prosecution, but to enforce the [state’s] obligation to provide him with a state
court forum.” Id. at 491.
       Importantly, Fain addressed Braden in the context of its exhaustion
ruling and concluded that its holding was in harmony with Braden. See Fain,
488 F.2d at 224 (“Again, this can be analogized to Braden. . . . [J]ust as in the
case of speedy trial, the [Double Jeopardy] right is one which can and should
be vindicated without waiting until the state decides to conduct a trial.”).


       4 Texas also argues that Fain is distinguishable “because [Montano] has other state
court remedies available which would allow for further state appellate review,” presumably
a reference to the “special plea.” However, as just discussed, the special plea is not materially
different than the situation addressed in Fain. Texas also relies on Davis v. Anderson, No.
4:10-cv-057, 2010 WL 2300407 (N.D. Tex. May 24, 2010), report and recommendation
adopted, No. 4:10-CV-057-Y, 2010 WL 2300393 (N.D. Tex. June 7, 2010). Aside from the fact
that we are not bound by Davis, the magistrate judge there found that “Davis ha[d] provided
no proof of his efforts to exhaust state remedies or that state court remedies are unavailable
or inadequate.” Id. at *2. That is simply not so in this case. Montano raised his Double
Jeopardy claim to every level of the Texas judiciary and was denied relief.
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                                       No. 16-20083
Fain’s interpretation of Supreme Court precedent is binding under our rule of
orderliness. See Barber v. Johnson, 145 F.3d 234, 237 (5th Cir. 1998) (“Even if
persuaded that [our prior panel opinion] is inconsistent with [an earlier
Supreme Court opinion], we may not ignore the decision, for in this circuit one
panel may not overrule the decision of a prior panel.”).
       As to Dickerson, that decision held that a defendant could not assert a
Speedy Trial claim before trial in a Section 2241 petition. 816 F.2d at 226–28.
We distinguished Braden on the ground that the habeas petitioner in that case
had not sought to derail his criminal prosecution, only to compel the state to
carry out the trial in a prompt fashion. Id. at 226. By contrast, the petitioner
in Dickerson sought to have the charges against him dismissed due to the
asserted Speedy Trial violation. 5 Id. Texas argues that Montano, like the
petitioner in Dickerson, is seeking to derail his criminal prosecution.
       This argument, however, disregards the critical differences between the
rights at issue in these cases. The Speedy Trial Clause does not prohibit
prosecution; it requires prompt prosecution. See U.S. Const. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial . . . .”). The petitioner in Dickerson was not seeking to enforce this
requirement, but sought instead to use the Speedy Trial Clause as a means of
preventing prosecution from occurring at all. Dickerson, 816 F.2d at 226–27.
By contrast, the whole point of the Double Jeopardy Clause is to bar
prosecution. Montano’s Section 2241 petition seeks nothing more than to
enforce this protection, just as the petitioner in Braden sought nothing more
than to enforce the Speedy Trial Clause’s guarantee. To ignore the differences




       5 We also held that, to the extent the petitioner was seeking merely to compel the state
to carry out a speedy trial, he had not exhausted all pre-trial remedies as had the petitioner
in Braden. See id. at 228.
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                                       No. 16-20083
between Double Jeopardy and Speedy Trial protections is to fundamentally
misunderstand these cases. 6
       Moreover, even if Dickerson were in conflict with Fain—which we do not
read it to be—Fain would control under our rule of orderliness. Jacobs v. Nat’l
Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled
Fifth Circuit rule of orderliness that one panel of our court may not overturn
another panel’s decision, absent an intervening change in the law, such as by
a statutory amendment, or the Supreme Court, or our en banc court.”). 7
                                       * * * * *
       The requirement that state criminal defendants exhaust available state
remedies is vital to “preserv[ing] the respective roles of state and federal
governments and avoid[ing] unnecessary collisions between sovereign powers.”
Fain, 488 F.2d at 224. While exceptions to this requirement appropriately
apply “only in extraordinary circumstances,” we do not require defendants to
pursue state remedies that are “wholly inappropriate to the relief sought.”
Fuller, 11 F.3d at 62 (quotation marks omitted); see also Gallegos-Hernandez,
688 F.3d at 194. Such is the case here. As we recognized in Fain, Section 2241’s
exhaustion requirement does not mandate that defendants asserting a Double
Jeopardy claim subject themselves to the very harm the Double Jeopardy
clause protects against before being able to assert the right in federal court.




       6Our decision in Brown v. Estelle, 530 F.2d 1280 (5th Cir. 1976) is distinguishable for
these same reasons.
       7Texas also argues that the district court was correct to dismiss Montano’s petition
based on the abstention doctrine recognized in Younger v. Harris, 401 U.S. 37 (1971). But
whatever might follow from Younger in another context, Fain holds that a federal court may
adjudicate a Double Jeopardy claim even though the possibility exists that the defendant
could obtain a favorable result at or after trial. See Fain, 488 F.2d at 224.
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                                  No. 16-20083
                                        B.
      The Texas court of appeals rejected Montano’s Double Jeopardy claim
because it concluded that he implicitly consented to being retried—which is a
recognized exception to the Double Jeopardy Clause’s protections. See Ex parte
Montano, 451 S.W.3d at 879–80. Montano argues that the state trial judge sua
sponte ordered a mistrial and so he did not have time to object. He also argues
that declaring a mistrial was improper because the witness had already
incriminated himself and should not have been permitted to invoke his Fifth
Amendment rights after the fact. And Montano notes that the witness who
incriminated himself has now been granted immunity by Texas, which he
claims will prejudice him if he is retried. Texas, by contrast, argues that
Montano implicitly consented to the mistrial. Though the federal district court
did not reach Montano’s Double Jeopardy claim, Montano urges us to address
it in the first instance.
      We decline to do so. “As a court for review of errors,” we do “not . . . decide
facts or make legal conclusions in the first instance,” but “review the actions of
a trial court for claimed errors.” Browning v. Kramer, 931 F.2d 340, 345 (5th
Cir. 1991). In other words, “a court of appeals sits as a court of review, not of
first view.” United States v. Vicencio, 647 F. App’x 170, 177 (4th Cir. 2016)
(quotation marks omitted); see also United States v. Houston, 792 F.3d 663, 669
(6th Cir. 2015) (“Like the Supreme Court, we are a court of review, not first
view.”). Given that the district court did not reach Montano’s claim, the normal
course would be to remand for the district court to do so. See, e.g., Shanks v.
AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999) (“We decline to
examine these claims, because the district court never addressed [them].”).
      Adhering to this approach is particularly advisable here, where the
record is not sufficiently developed to adjudicate Montano’s Double Jeopardy
claim. It is settled that “Double jeopardy may be waived by consent,” United
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                                       No. 16-20083
States v. Nichols, 977 F.2d 972, 974 (5th Cir. 1992), and consent “can either be
express or implied.” United States v. Palmer, 122 F.3d 215, 218 (5th Cir. 1997).
In rejecting Montano’s Double Jeopardy claim, the Texas court of appeals
concluded that Montano had impliedly consented to the mistrial and therefore
waived his Double Jeopardy rights. See Ex parte Montano, 451 S.W.3d at 880.
However, the record on appeal does not contain any of the transcripts or other
materials from the trial proceedings necessary to adjudicate whether Montano
provided such consent. The only record “evidence” as to what actually took
place in the state proceeding comes in the form of the Texas court of appeals
opinion, which reproduces snippets of the record in the course of its decision.
       Because the district court did not address Montano’s Double Jeopardy
claim and because the record is not sufficiently developed to enable us to do so
in the first instance, we do not address it. See, e.g., United States v. Gonzalez,
540 F. App’x 267, 268 (5th Cir. 2013) (“The record is not adequately developed
to enable us to review Gonzalez’s IAC claim in the first instance, so we decline
to address it on direct appeal.”).
                                              IV.
       Accordingly, because Montano has exhausted all available state
remedies in accordance with our precedent, we REVERSE the dismissal of his
habeas petition and REMAND for adjudication of his Double Jeopardy claim. 8




       8 Montano asks us to grant him a certificate of appealability. Because Montano is
correctly proceeding under 28 U.S.C. § 2241, a certificate of appealability is not required. See
Ojo v. I.N.S., 106 F.3d 680, 681 (5th Cir. 1997); see also Padilla v. United States, 416 F.3d
424, 425 (5th Cir. 2005).
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