Opinion
Civil Action 4:22-cv-00782
05-06-2022
BRIAN LANDIS ANDERSON, SPN #01752217 Petitioner, v. ED GONZALEZ, Respondent.
MEMORANDUM ON DISMISSAL
HON. CHARLES ESKRIDGE, UNITED STATES DISTRICT JUDGE.
Petitioner Brian Landis Anderson seeks a writ of habeas corpus under 28 USC § 2254. Dkt 1. The petition is dismissed without prejudice for failure to exhaust state remedies before filing in federal court. His motion to proceed in forma pauperis is granted. Dkt 2. His motion for the appointment of counsel is denied. Dkt 5.
1. Background
Anderson is a pretrial detainee in the Harris County Jail. He awaits trial on charges of aggravated assault of a family member in Cause Number 1684881 and failure to comply as a sex offender in Cause Number 1586295 in the 338th Judicial District Court of Harris County, Texas. The Harris County District Clerk website shows that on August 19, 2020, the state criminal court set his bond at $45,000 in Cause Number 1586295, and $50,000 in Cause Number 1684881. That same website indicates that his next court date is July 11, 2022.
2. Legal standards
State prisoners may not seek relief pursuant to a federal writ of habeas corpus to correct errors of state constitutional, statutory, or procedural law unless a federal issue is also present. See Lowery v Collins, 988 F.2d 1364, 1367 (5th Cir 1993); see also Estelle v McGuire, 503 F.3d 408, 413 (5th Cir 2007) (noting federal habeas corpus relief does not pertain to errors of state law) (internal citation omitted). A federal court will not act as a “super state supreme court” to review error under state law in state proceedings. Wood v Quarterman, 503 F.3d 408, 414 (5th Cir 2007). The prisoner seeking such review must instead assert a violation of a federal constitutional right.
The provisions of 28 USC § 2241 apply to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the pending case. It is the proper vehicle for seeking federal habeas corpus relief from pretrial detention. See Stringer v Williams, 161 F.3d 259, 262 (5th Cir 1998), citing Dickerson v Louisiana, 816 F.2d 220, 224 (5th Cir 1987). A state pretrial detainee may seek a federal writ of habeas corpus under § 2241 only if he is in custody for purposes of § 2241(c) and has exhausted available state remedies. See Dickerson, 816 F.2d at 224; see also Braden v 30th Judicial Circuit Court of Ky, 410 U.S. 484 (1973).
A petitioner in Texas can exhaust remedies in two ways. First, he can present his claims to the Texas Court of Criminal Appeals by filing an appeal followed by a petition for discretionary review. Second, he can file an application for a writ of habeas corpus in the Texas Court of Criminal Appeals. See Myers v Collins, 919 F.2d 1074, 1076 (5th Cir 1990) (exhaustion may be accomplished directly in a petition for discretionary review or collaterally in habeas corpus petition). The petitioner needn't pursue both avenues of relief in order to satisfy the exhaustion requirement. Ibid.
Texas defendants who have been denied bond may file a direct appeal with the Texas Court of Criminal Appeals. See Tex Const Art 1, § 11a(a). A Texas pretrial detainee who complains about the amount of his bond may file an application for writ of habeas corpus to raise preconviction issues with the judge of the court in which he has been indicted. See Tex Code Crim Proc art 11.08. If the trial court denies such relief under Article 11.08, the applicant's remedy is to file a direct appeal in an intermediate appellate court and then petition for discretionary review by the Texas Court of Criminal Appeals. For example, see Ex parte Twyman, 716 S.W.2d 951, 952 (Tex Crim App 1986), citing Ex parte Payne, 618 S.W.2d 380, 382 n 5 (Tex Crim App 1981).
Federal courts must give state courts a fair opportunity to hear and consider the claims raised by an applicant before the federal courts can hear those claims. Picard v Connor, 404 U.S. 270, 275 (1971). This is a matter of comity. It is designed to protect the relationship “between state and federal courts, respect for the integrity of state court procedures, and a desire to protect the state courts' role in the enforcement of federal law.” See Nickelson v Stephens, 803 F.3d 748, 753 (5th Cir 2015) (internal citations and quotations omitted).
In Texas, all claims must be presented to and ruled on by the Texas Court of Criminal Appeals. Richardson v Procunier, 762 F.2d 429, 431-32 (5th Cir 1985); Tipton v Thaler, 354 F Appx 138, 140 n 1 (5th Cir 2009). A federal district court thus may raise lack of exhaustion sua sponte. Shute v State, 117 F.3d 233, 237 (5th Cir 1997). And it may dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v Lundy, 455 U.S. 509, 510 (1982).
3. Analysis
Anderson filed his petition under 28 USC § 2241 seeking a reduction of his bond. That provision governs his petition because he is a pretrial detainee. And his confinement at the Harris County Jail establishes that he is in custody for purposes of § 2241(c).
Anderson hasn't established that he's exhausted available state court remedies before seeking relief in federal court. For instance, he doesn't claim that he has presented his request for bond reduction to the Texas Court of Criminal Appeals. Dkt 1 at 2.
Court-appointed counsel represents Anderson in state court. A review of the online records of the Texas Court of Criminal Appeals doesn't show that Anderson filed anything related to his present prosecution in state court. But a petitioner must give the state court a fair opportunity to pass upon the claim before bringing it in federal court. See Wenceslao v. Quarterman,, 326 F Appx 789, 790 (5th Cir 2009), citing and quoting Morris v Dretke, 379 F.3d 199, 204 (5th Cir 2004). Until Anderson has done so, he may not pursue federal habeas corpus relief here. See Dickerson, 816 F.2d at 224.
Anderson also hasn't shown that state corrective processes are unavailable or that circumstances render such processes ineffective to protect his rights. See Graham v. Johnson, 94 F.3d 958, 969 (5th Cir 1996), citing Duckworth v Serrano, 454 U.S. 1, 3 (1981). As such, he must present these claims to the state courts before proceeding in federal court.
The federal petition for a writ of habeas corpus will be dismissed without prejudice for failure to exhaust state remedies.
4. Conclusion
Anderson has not exhausted available state remedies. His federal petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. Dkt 1.
Anderson's motion to proceed in forma pauperis is GRANTED. Dkt 2.
His motion for the appointment of counsel is DENIED AS MOOT. Dkt 5.
Any remaining pending motions are DENIED AS MOOT.
SO ORDERED.