Rubio v. Lumpkin

Case: 20-20158 Document: 00516311426 Page: 1 Date Filed: 05/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 9, 2022
No. 20-20158
Lyle W. Cayce
Clerk
James Rubio,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-1126
Before Willett, Engelhardt, and Wilson, Circuit Judges.
Per Curiam:*
A civilly committed Texan seeks habeas relief under 28 U.S.C.
§ 2254. The district court denied his petition on procedural grounds. We
AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-20158
I
James Rubio pleaded nolo contendere to aggravated sexual assault. A
jury later found that he was a “sexually violent predator.” That finding
caused Rubio’s civil commitment under Texas law. See Tex. Health &
Safety Code §§ 841.003, .081. Rubio appealed, but his appeal was
dismissed after he violated his commitment order.
Rubio later unsuccessfully attempted to challenge his civil
commitment in Texas state court. He tried to file a habeas petition in state
court under Texas Code of Criminal Procedure Article 11.07. Habeas under
that Article “seeks relief from a felony judgment imposing a penalty other
than death.” Tex. Code Crim. Pro. art. 11.07, § 1. Because civil
commitment is not a felony conviction, 1 the state court clerk refused to file
Rubio’s petition. It was the clerk’s “understanding,” the clerk advised
Rubio, that civil commitment orders could be challenged only by “fil[ing] the
proper paperwork” in federal court.
Regrettably for Rubio, he took the clerk’s legal advice. Rubio
proceeded to file a habeas petition in federal district court under 28 U.S.C.
§ 2254. That section, reasoned the district court, generally requires detainees
like Rubio to exhaust all available state remedies before filing a federal habeas
petition. Because no Texas appellate court had evaluated Rubio’s claims—
either directly on appeal or collaterally on habeas—the district court
concluded that Rubio had not exhausted all his state remedies. So the district
court dismissed Rubio’s petition without prejudice for him to do so. We
granted Rubio a limited certificate of appealability. He now appeals pro se.
1
We note that the Supreme Court of Texas has held that a commitment proceeding
is civil, not criminal. See In re Commitment of Fisher, 164 S.W.3d 637, 654 (Tex. 2005).
2
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II
Two obstacles block us from reviewing the merits of Rubio’s § 2254
habeas petition. Simply put, Rubio has abandoned any argument that he
exhausted his state remedies before filing this habeas petition—precisely why
the district court denied his habeas petition in the first place. But even if he
had not, we agree with the district court that Rubio has failed to exhaust his
state remedies and that no exception applies.
A
We agree with Defendant that Rubio has abandoned his argument that
the district court erred in concluding he hasn’t exhausted his state remedies.
The Rules of Appellate Procedure require appellants to include in the
argument section of their briefs their “contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies,” as well as “for each issue, a concise statement of the applicable
standard of review.” Fed. R. App. P. 28(a)(8). Not meeting that
standard—in other words, inadequately briefing issues or arguments—causes
them to be abandoned. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
And while we liberally construe the briefs of pro se litigants, Abdul–Alim Amin
v. Universal Life Insurance Co. of Memphis, 706 F.2d 638, 640 n.1 (5th Cir.
1983) (per curiam), they have no general immunity from abandoning issues
or arguments on appeal, see Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002).
Nowhere did Rubio argue in his opening brief that the district court erred in
concluding he had failed to exhaust his state remedies. Therefore, he has
abandoned the issue and we need not review it.
3
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B
Still, even if Rubio had preserved the exhaustion issue for our review,
we agree with the district court that he has not exhausted his state remedies.
And because no exception to the exhaustion requirement applies, we cannot
give Rubio the relief he seeks.
Federal courts generally cannot grant Rubio any relief under § 2254
until he “has exhausted the remedies available in the courts of [Texas].”
§ 2254(b)(1)(A). The district court found that “no briefs were filed” in
Rubio’s direct appeal before it was dismissed. And “[t]here is no evidence
that Rubio sought a state writ of habeas corpus to challenge the civil
commitment judgment” before he filed “this federal petition.” Nothing in
the parties’ arguments or the record calls those findings into question. And
while “interference by officials” can sometimes serve to resurrect a lost
opportunity to pursue federal habeas relief, see Brown v. Allen, 344 U.S. 443,
485–86 (1954), 2 Rubio has not lost his opportunity. He simply has to exhaust
his state remedies first.
Rubio mistakenly believes that we concluded otherwise when we
granted his certificate of appealability. We did not. We merely held that
“[r]easonable jurists could debate whether the district court erred” in not
concluding that § 2254’s exceptions applied. Order at 3, Rubio v. Lumpkin,
No. 20-20158 (5th Cir. Mar. 15, 2021) (dkt. 28) (emphasis added.) Those
exceptions would allow us to reach the merits of Rubio’s petition if he could
show that “there is an absence of available State corrective process,” or
2
Relatedly, we note that Rubio’s argument is, essentially, one of equitable
estoppel—that Texas, through a single court clerk, declared Rubio had exhausted his state
remedies and so now it should be estopped from denying so. But that theory is “rarely valid
against the government,” Linkous v. United States, 142 F.3d 271, 277 (5th Cir. 1998), and
Rubio does not adequately brief it in any event, see id. at 278 (outlining a four-part test).
4
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“circumstances exist that render such process ineffective to protect the
rights of the applicant.” § 2254(b)(1)(B). But now the debate is over. Section
2254’s exhaustion exceptions do not apply. Defendant argues that Rubio
should have filed for civil habeas in Texas court before filing this petition.
Rubio has no good response. He merely argues that the “additional [habeas]
filings” he has made in “the district court up-to the TX Supreme Court”
have been “ignored.” But whether they have been ignored does not matter
for this petition. What matters is that no record evidence supports that before
filing this petition, in 2014, Rubio could not avail himself of state corrective
process or that such process would have been ineffective to protect his
rights. 3 Therefore, § 2254’s exhaustion exceptions cannot apply.
III
Rubio may not be getting relief today, but his habeas odyssey is not
through. The district court left the door wide open for him to refile. If Rubio
exhausts his state remedies and finds no relief, he might still find relief in
federal court. Then again, he might not. Because procedural defects in
Rubio’s petition prevent us from deciding either way, though, we AFFIRM.
3
We note that Rubio is, apparently, actively seeking habeas relief in state court.
For example, the record suggests that he has an active habeas petition in Texas district
court, and that he has filed additional petitions in the courts of appeal and the Supreme
Court of Texas.
5