Opinion
CIVIL ACTION NO. H-02-1342
April 22, 2002
MEMORANDUM AND ORDER ON DISMISSAL
Petitioner James Edward Lewis, a state inmate incarcerated in the Willacy County State Jail, has filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 to challenge a state court felony conviction. For the reasons that follow, the Court will dismiss the petition.
I. DISCUSSION
Petitioner reports that he was convicted on March 23, 2001, in the 232nd District Court of Harris County, Texas, of the unauthorized use of a motor vehicle in cause number 867453. Petitioner filed an appeal in the Fourteenth Court of Appeals for the State of Texas. (Docket Entry No. 1). State court records indicate that the appeal is pending.
Petitioner also indicates that he has filed a state application for writ of habeas corpus in the 232nd District Court of Harris County, Texas on the following grounds: "unconstitutional arrest, unconstitutional trial, unconstitutional sentence." (Docket Entry No. 1). The state district court's records indicate that he filed a state habeas application on May 4, 2001, and the Texas Court of Criminal Appeals denied the application on December 19, 2001.
Information verified by telephone conversation with Deputy clerk of the 232nd District Court of Harris county, Texas.
Under 28 U.S.C. § 2254, a petitioner "must exhaust all available state remedies before he may obtain federal habeas corpus relief." Sones v. Hargett, 61 F.3d 410, 414 (5th Cir. 1995). The doctrine of exhaustion, codified as amended at 28 U.S.C. § 2254(b)(1) and (c), reflects a policy of federal/state comity. See Coleman v. Thompson, 501 U.S. 722 (1991). Those statutes provide in pertinent part as follows:
(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.
* * * *
(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(b) — (c). Under this framework, exhaustion means that the petitioner must have presented all of his habeas corpus claims fairly to the state's highest court before he may bring them to federal court. Castille v. Peoples, 489 U.S. 346 (1989); Fisher v. State, 169 F.3d 295, 302 (5th Cir. 1999). In Texas, exhaustion may take one of two paths: (1) the petitioner may file a direct appeal followed, if necessary, by a Petition for Discretionary Review in the Texas Court of Criminal Appeals, or (2) he may file a petition for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure in the convicting court which, if denied, is automatically transmitted to the Texas Court of Criminal Appeals. Myers v. Collins, 919 F.2d 1074 (5th Cir. 1990)
In this case, the Texas Court of Criminal Appeals has denied petitioner's state habeas application, but petitioner has a direct appeal pending in a state intermediate appellate court. While the grounds petitioner indicated that he raised in his state habeas application are very broad, the grounds that he raised on direct appeal are unknown. of concern is whether the direct appeal might result in reversal on some ground, thereby, mooting a federal question presented in this habeas action. "Moreover, federal disruption of the state judicial appellate process would be an unseemly and uncalled for interference that comity between our dual system forbids." Williams v. Bailey, 463 F.2d 247 (5th Cir. 1972) Therefore, this Court will dismiss petitioner's federal habeas petition for failure to exhaust state remedies.
On February 7, 2002, the United States District Court for the Northern District of Texas, Lubbock Division, entered an order barring petitioner from filing any habeas petition without permission from a United States District Judge or Circuit Judge of the Fifth Circuit and without proof of exhaustion of state court remedies. Lewis v. Cockrell, Civil Action No. 02-MC-1 (S.D. Tex. February 7, 2002). This Court's policy is to enforce sanction orders imposed by other federal district courts in Texas, to the extent comity and justice require it. After reviewing the sanction order, petitioner's litigation history, and his failure to prove that he has exhausted state remedies in this case, this Court has determined that it should enforce the sanctions of the sister court. Accordingly, the Court will dismiss this habeas action, without prejudice, subject to petitioner complying with the sanction order.
II. CERTIFICATE OF APPEALABILITY
A certificate of appealability from a habeas corpus proceeding will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard "includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted). Stated differently, the petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id.; Beasley v. Johnson, 242 F.3d 248, 263 (5th Cir.), cert. denied, 122 S.Ct. 329 (2001). On the other hand, when denial of relief is based on procedural grounds, the petitioner must not only show that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," but also that they "would find it debatable whether the district court was correct in its procedural ruling." Beasley, 242 F.3d at 263 (quoting Slack, 529 U.S. at 484); see also Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S. 996 (2000). A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). The Court has determined that petitioner has not made a substantial showing of the denial of a constitutional right; therefore, a certificate of appealability from this decision will not issue.
III. CONCLUSION
For these reasons, the Court ORDERS as follows:
1. The petition is DISMISSED WITHOUT PREJUDICE, for failure to exhaust state remedies and for failure of the petitioner to comply with the sanction order imposed in Lewis v. Cockrell, Civil Action No. 02-MC-1 (S.D. Tex. February 7, 2002).
2. Petitioner's application to proceed in forma pauperis (Docket Entry No. 2) is DENIED.
3. A certificate of appealability is DENIED.
The Clerk will provide copies of this Order to the parties.