Kaderli v. Merritt

Full title: ROLAND KADERLI, JR., Petitioner, v. KEITH MERRITT, Respondent.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

Date published: Sep 16, 2019

CIVIL ACTION NO. 1:19-CV-338 (E.D. Tex. Sep. 16, 2019)

Opinion

CIVIL ACTION NO. 1:19-CV-338

09-16-2019

ROLAND KADERLI, JR., Petitioner, v. KEITH MERRITT, Respondent.

MARCIA A. CRONE UNITED STATES DISTRICT JUDGE

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner Roland Kaderli, Jr., an inmate confined at the Orange County Jail in Orange, Texas, proceeding pro se, brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge recommends that the above-styled petition should be dismissed.

The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record, pleadings and all available evidence. Petitioner filed objections to the magistrate judge's Report and Recommendation. This requires a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b).

After careful consideration, the court concludes petitioner's objections are without merit. Petitioner states he pursued collateral review by filing a state application pursuant to article 11.07. However, "[h]abeas relief under article 11.07 requires a final conviction." Caldwell v. Dretke, 429 F.3d 521, 529 n.18 (5th Cir. 2005). As petitioner has not been finally convicted, he failed to follow the proper procedure to exhaust his available state habeas remedies as explained in the report. Because petitioner failed to present his claims in a procedurally correct manner according to the rules of the state court, petitioner has not given the state a fair opportunity to review his claims. Thus, the claims should be dismissed for failing to exhaust available state habeas remedies. In the alternative, the petition should be dismissed for lack of jurisdiction in accordance with the decision in Younger v. Harris, 401 U.S. 37, 46 (1971).

ORDER

Accordingly, petitioner's objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's recommendation.

SIGNED at Beaumont, Texas, this 16th day of September, 2019.

/s/_________

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE