Opinion
No. 3:02-CV-2380-D.
August 10, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the District Court this case was referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I.
Petitioner, Daniel Chaves Ybarra, is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division ("TDCJ-CID). Douglas Dretke, Director of TDCJ-CID, is Respondent. Petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254.
On May 2, 1994, Petitioner was convicted of aggravated kidnapping pursuant to a plea of nolo contendere in Hunt County, Texas. He received a ten-year deferred adjudication probation. His probation was later revoked, and he was sentenced to twenty-four years in the custody of TDCJ-CID. State v. Ybarra, No. 17, 710 (196th Dist. Ct., Hunt County, Tex. Nov. 21, 2000).
II.
Petitioner claims that the United States notified him on May 6, 2003, that Rowena Daniels was not a licensed attorney when she purported to represent him in revocation proceedings on October 9, 2000. He claims that the State filed charges against Daniels in Hunt County for falsely holding herself out to Petitioner as an attorney and purportedly representing him. Daniels was convicted of the charge and ordered to pay restitution to Petitioner. Daniels was disbarred March 1, 2003. Petitioner seeks to have his conviction and sentence set aside because he was not represented by licensed counsel during the probation revocation proceedings.This Court appointed counsel to represent Petitioner at a hearing on his § 2254 petition, and set the hearing for July 27, 2004. On July 22, 2003, Respondent filed a Motion to Dismiss for Failure to Exhaust Administrative Remedies and a Motion to Cancel the Evidentiary Hearing. Respondent now admits that (1) Daniels was suspended from the practice of law from September 1, 2000, until November 8, 2000; (2) she was convicted of falsely holding herself out as a lawyer by appearing in the 196th Judicial District Court on October 9, 2000, representing Petitioner in the defense of a felony criminal offense while she was not in good standing with the State Bar of Texas; and (3) she was disbarred on March 25, 2003. (Motion at 4.)
At the time he brought his state habeas petition, Petitioner had no reason to suspect that when Daniels purported to represent him at the felony probation revocation proceedings, she was not a licensed attorney. Hence, he did not include that claim in his state habeas corpus application.
III.
The terms of 28 U.S.C. § 2254 provide that habeas relief shall not be granted on unexhausted claims. 28 U.S.C.A. § 2254(b)(1)(A) (West 2004); Morris v. Dretke, No. 04-70004, 2004 WL 1627254, *4-6 (5th Cir. July 21, 2004). When the substance of the federal habeas corpus claim has been fairly presented to the highest state court, the exhaustion requirement is satisfied. Id., citing Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). The Fifth Circuit Court of Appeals explained in Morris that when evidence presented for the first time in a federal habeas corpus proceeding supplements, but does not fundamentally alter, the claim presented to the state courts, dismissal is generally not required. Morris, at *4, citing Anderson v. Johnson, 338 F.3d 382, 386-87 and Vasquez v. Hillery, 474 U.S. 254, 262 (1986)). Nonetheless, the Morris court noted that a petitioner fails to exhaust available state remedies when he presents " material additional evidentiary support that was not presented to the state court." Morris, at *4, citing Anderson, 338 F.3d at 386 (quoting Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)). If the new evidence places the claims in a significantly different legal posture, it must first be presented to the state courts. Morris, at *4. A court considering the exhaustion requirement must make a fact-specific inquiry into whether the additional evidence fundamentally alters or merely supplements the state petition. Id.
In this case, Plaintiff raised ineffective assistance of counsel claims in his state habeas corpus application regarding Daniels' representation of him in the revocation proceedings. Petitioner claimed that Daniels provided constitutionally ineffective assistance by (1) not appealing the trial court's determination of adjudication on the motion to revoke deferred probation, (2) failing to investigate the facts, and (3) allowing Petitioner to take the stand Ex parte Ybarra, No. 51,205-01 at 21. The substance of Petitioner's unexhausted claim is that he was not represented by a licensed attorney at the revocation hearing. This claim was not presented to the Texas Court of Criminal Appeals.
Ordinarily, claims that have not been presented to the Texas Court of Criminal Appeals in a first state application for writ of habeas corpus are procedurally barred by the abuse of the writ doctrine. Here, Respondent states that Petitioner's claim with respect to Daniels is not procedurally barred because a subsequent state writ application would not be successive. Respondent states that Petitioner still has a state court remedy available through writ application pursuant to TEX. CODE CRIM. PROC. art. 11.07 § 4(a)(1).
A petitioner may overcome a procedural default such as lack of exhaustion and obtain federal habeas corpus review of his barred claims on the merits if he can demonstrate (1) cause for the defaults and actual prejudice; (2) that the federal court's failure to consider the claims will result in a fundamental miscarriage of justice; or (3) that exhaustion would plainly be futile. See e.g., Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001); Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000); Graham, 94 F.3d at 969.
Petitioner's claim that he was not represented by licensed counsel at the revocation hearing is not included within the substance of the ineffective assistance of counsel claims that the state court considered on habeas corpus review. The record assembled here was not available to Petitioner at the time he brought his state habeas application, and the state court has not had the opportunity to consider his new claim or his new evidence. Petitioner has not shown that state process is not available, or that circumstances exist that render state process ineffective to protect his rights. Accordingly, federal habeas corpus relief is not available to Petitioner at this time.
RECOMMENDATION
The Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed without prejudice for failure to exhaust available state court remedies.