Urias v. State of Texas

Full title: JESUS MANUEL URIAS, Petitioner, v. THE STATE OF TEXAS, Respondent

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Jan 6, 2005

2:04-CV-0325 (N.D. Tex. Jan. 6, 2005)

Opinion

2:04-CV-0325.

January 6, 2005

REPORT AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO EXHAUST STATE COURT REMEDIES

CLINTON AVERITTE, Magistrate Judge

On December 9, 2004, petitioner JESUS MANUEL URIAS filed a Petition for a Writ of Habeas Corpus by a Person in State Custody. Petitioner is incarcerated at the Potter County, Texas Detention Center awaiting trial. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that the petition for a writ of habeas corpus should be DISMISSED for failure to exhaust state court remedies.

I. PROCEDURAL HISTORY

According to the habeas application submitted, petitioner URIAS was arrested on November 18, 2003 after being indicted for the offense of reckless injury to a child. In his application, petitioner alleges he was supposed to go to trial on November 8, 2004 but did not and, instead, was re-indicted on November 10, 2004. Petitioner appears to allege the first indictment was dismissed because the prosecution had failed to allege an element of the offense. Petitioner alleges his constitutional rights against double jeopardy have been violated, and that his attorney was ineffective for failing to file a motion objecting to the amended indictment.

On December 13, 2004, the undersigned entered an Order to Show Cause wherein petitioner was directed to show cause why this case should not be dismissed because there had not been a final conviction for petitioner to challenge by way of federal habeas application. On December 21, 2004, petitioner filed a document entitled "Motion to Show Cause Why Case Should Not be Dismissed." In that pleading, however, petitioner merely argued the merits of his habeas application but failed to meaningfully respond to the Court's Order. Further, it appears petitioner failed to exhaust his available state court remedies.

II. EXHAUSTION OF STATE COURT REMEDIES

Section 28 U.S.C. § 2254 states, as relevant to this proceeding:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059 (1989). The doctrine serves "to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).

Under our federal system, the federal and state courts are equally bound to guard and protect rights secured by the Constitution. Because it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, federal courts apply the doctrine of comity, which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.

Id. (brackets, internal quotation marks, and citations omitted). To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional claim presented to the state courts be supported by the same factual allegations and legal theories upon which the petitioner bases his federal claims. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Further, in order to satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a petitioner's confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary review.

In the instant case, petitioner has not filed any state habeas corpus application in which he raises the grounds asserted herein. Therefore, it appears the state's highest court has not yet had an opportunity to review and determine the merits of petitioner's claims. Moreover, petitioner has failed to respond to the Court's Order of December 13, 2004 and explain whether he is attempting to obtain federal habeas relief prior to trial.

Accordingly, it is the opinion of the undersigned Magistrate Judge that the grounds raised in petitioner's federal habeas application have not been exhausted and that this application is subject to summary dismissal in order that petitioner may present his claims to, and obtain a ruling by, the Texas Court of Criminal Appeals.

III. RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for Writ of Habeas Corpus filed by petitioner JESUS MANUAL URIAS be, in all things, DISMISSED for failure to exhaust state court remedies.

IV. INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner and to counsel of record for respondent by the most efficient means available.

IT IS SO RECOMMENDED.