Opinion
No. 3:16-cv-1469-B-BN
06-02-2016
TOMMY W. STEELE (# 4227-15), Petitioner, v. SHERIFF JOHNNY BROWN, Respondent.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Tommy W. Steele, confined in the Wayne McCollum Detention Center, has filed pro se an application for writ of habeas corpus under 28 U.S.C. § 2254. See Dkt. No. 3. For the reasons explained below, the federal habeas application should be denied pursuant to Rule 4 of the Rules Governing Section 2254 Cases without prejudice to Steele's right to fully exhaust his state court remedies.
Applicable Background
Steele challenges an indictment for possession of a controlled substance in a case he identifies as pending in the 443rd District Court of Ellis County, Texas. See Dkt. No. 3 at 2. And his petition establishes that he failed to pursue state habeas relief prior to filing this federal habeas action. See id. at 3.
Legal Standards and Analysis
28 U.S.C. § 2254
A petitioner must fully exhaust state remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1)(A). This entails submitting the factual and legal basis of any claim to the highest available state court for review in a procedurally correct manner. See Satterwhite v. Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989); see also Nickleson v. Stephens, 803 F.3d 748, 753 (5th Cir. 2015) ("The exhaustion doctrine demands more than allusions in state court to facts or legal issues that might be comprehended within a later federal habeas petition. The exhaustion doctrine is based on comity 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.'" (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989) (in turn quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)))). In Texas, a prisoner must present his claims to the Texas Court of Criminal Appeals ("CCA") in a petition for discretionary review or an application for state post-conviction relief. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986).
Under Rule 4 of the Rules Governing Section 2254 Cases, a district court may summarily dismiss a 28 U.S.C. § 2254 habeas application "if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Id.
This rule differentiates habeas cases from other civil cases with respect to sua sponte consideration of affirmative defenses. The district court has the power under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. This power is rooted in "the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer."Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting 28 U.S.C. foll. § 2254 Rule 4 Advisory Committee Notes); see Rodriguez v. Dretke, No. 5:04-cv-28-C, 2004 WL 1119704, at *1 (N.D. Tex. May 17, 2004) (applying Rule 4 prior to the filing of an answer where this "Court [was] of the opinion that [the petitioner] has failed to exhaust his state court remedies" (citing Kiser)); see also Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir. 1998) ("[T]here is no doubt that a federal court may raise sua sponte a petitioner's failure to exhaust state law remedies and apply that doctrine to bar federal litigation of petitioner's claims until exhaustion is complete." (citations omitted)).
Through the Section 2254 habeas petition, Steele reveals that he has not fully exhausted applicable state court remedies by obtaining a decision from the CCA prior to filing a habeas application in this Court. He therefore has failed to exhaust state court remedies in a procedurally correct manner, and his Section 2254 petition should be dismissed without prejudice pursuant to Rule 4.
28 U.S.C. § 2241
Although Steele has requested habeas relief through a Section 2254 form, even if the Court liberally construes the petition as seeking relief under 28 U.S.C. § 2241, federal habeas relief still would be currently unavailable to Steele, because he is still awaiting trial and has neither presented his claims to the CCA nor shown that he should be excused from this exhaustion requirement. Therefore, the Court should not, at this time, derail his state criminal proceedings by considering whether he is entitled to habeas relief under Section 2241.
"A state pretrial detainee is entitled to raise constitutional claims in a federal habeas proceeding under § 2241 if two requirements are satisfied." Ray v. Quarterman, No. 3:06-cv-850-L, at *1 (N.D. Tex. July 24, 2006), rec. adopted, 2006 WL 2844129 (N.D. Tex. Sept. 29, 2006). Steele's incarceration in Ellis County satisfies the initial "in custody" requirement. See id.
But he also must exhaust "his available state remedies." Id. at *1 & n.1 (explaining that, "[d]espite the absence of an exhaustion requirement in the statutory language of § 2241, the courts have developed an exhaustion doctrine, holding that federal courts should abstain from the exercise of jurisdiction until the issues are resolved in state court"; citing Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987); Braden v. 30th Judicial Circuit Ct of Ky., 410 U.S. 484, 489-92 (1973)).
State remedies are ordinarily not considered exhausted so long as the petitioner may effectively present his claims to the state courts by an currently available and adequate procedure. Braden, 410 U.S. at 489. This entails submitting the factual and legal basis of any claim to the highest available state court for review. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir . 1982). A Texas pretrial detainee must present his claim to the Texas Court of Criminal Appeals. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985).Id.; see also Braden, 410 U.S. at 493 ("Derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court" is not allowed.).
A petitioner may be excused from the exhaustion requirement only if he can show "exceptional circumstances of peculiar urgency." Deters, 985 F.2d at 795. Absent exceptional circumstances, a pre-trial detainee may not adjudicate the merits of his claims before a judgment of conviction has been entered by a state court. Braden, 410 U.S. at 489.
Steele has failed to make this showing.
Recommendation and Direction to the Clerk of Court
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court should deny Steele's 28 U.S.C. § 2254 habeas application without prejudice to his right to fully and properly exhaust state court remedies, and also should direct that the Clerk of Court serve any order adopting this recommendation on the Texas Attorney General.
The Clerk of Court is DIRECTED to serve electronically a copy of this recommendation and the petition, along with any attachments thereto and brief in support thereof, on the Texas Attorney General and will be directed to the attention of Elizabeth Goettert and Laura Haney, Assistant Attorneys General, Postconviction Litigation Division, Austin, Texas. See RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS, RULE 4.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: June 2, 2016
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE