Opinion
No. 3:16-cv-161-G-BN
01-21-2016
VICTOR M. VALLES, JR. (TDCJ No. 1998006), Petitioner, v. WARDEN WALLACE, Respondent.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Victor M. Valles, Jr., a Texas inmate, proceeding pro se, has filed a 28 U.S.C. § 2254 application for writ of habeas corpus. See Dkt. No. 3. For the reasons explained below, the application should be denied without prejudice to Valles's right to pursue his state court remedies pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
Background
The Section 2254 petition, dated December 25, 2015, appears to challenge an April 8, 2015 conviction for driving while intoxicated third. See State v. Valles, No. F-1440954-T (283rd Jud. Dist. Court, Dallas Cnty., Tex.). Valles pleaded guilty, and he was sentenced to 10 years' incarceration. See id.; but see Dkt. No. 3 at 2 (stating that the length of his sentence is 270 days). In his federal petition, Valles states that he neither filed a direct appeal nor pursued state post-conviction relief. And records available online from the Texas Court of Criminal Appeals confirm this.
Legal Standards and Analysis
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 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, Valles plainly reveals that he has not presented any claim related to his conviction and sentence to the highest available state court for review in a procedurally correct manner. Thus, he has failed to exhaust his state remedies. And his Section 2254 petition should be dismissed without prejudice pursuant to Rule 4.
Recommendation and Direction to the Clerk of Court
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court should deny Valles's 28 U.S.C. § 2254 habeas application without prejudice to his right to pursue - and fully and properly exhaust - his state court remedies. The Court 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: January 21, 2016
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE