Westerby v. Abbott
MEMORANDUM OPINION regarding the petition for writ of habeas corpus. A certificate of appealability will not be issued. Signed by Judge Thad Heartfield on 8/23/2017. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:14-CV-345
Petitioner Charles Westerby, a prisoner previously confined at the Stiles Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), proceeding pro se,
brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Factual Background and Procedural History
Petitioner is in custody pursuant to a judgment entered in the 251st Judicial District Court
of Potter County, Texas. On May 17, 1985, petitioner pleaded guilty to aggravated sexual assault.
The court deferred adjudication and placed petitioner on community supervision for ten years. On
March 1, 1991, petitioner’s community supervision was revoked, and he was sentenced to sixty years
This petition does not concern petitioner’s conviction or sentence. Rather, petitioner alleges
his constitutional rights were violated when TDCJ forfeited 180 days of petitioner’s good time
credits pursuant to Texas Government Code § 408.0045 for filing frivolous lawsuits.
As a prerequisite to obtaining relief under § 2254, a prisoner must exhaust all remedies
available in the state system before proceeding in federal court unless circumstances exist which
render the state corrective process ineffective to protect the prisoner’s rights. 28 U.S.C. § 2254(b)
and (c). A prisoner has not exhausted remedies “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(c). To comply with
the exhaustion requirement, petitioner must fairly present his claim to the appropriate state court
before filing a petition in federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Picard v. Connor,
404 U.S. 270, 275 (1971); Morris v. Dretke, 379 F.3d 199, 204 (5th Cir. 2004). In Texas, all claims
must be presented to and ruled on by the Texas Court of Criminal Appeals. Tigner v. Cockrell, 264
F.3d 521, 526 (5th Cir. 2001); Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985).
As required by Texas Government Code § 501.0081(a), the Texas Department of Criminal
Justice developed a system for resolving complaints by inmates who complain that their time has not
been properly credited. To exhaust a time credit issue, an inmate must first submit an Offender Time
Credit Dispute Resolution Form to the Classification and Records Office, and then present his claims
to the Texas Court of Criminal Appeals by filing a state habeas application. Texas Department of
Criminal Justice, Offender Orientation Handbook (Revised, November 2004). An inmate may not
file a state habeas application complaining about time credit unless the inmate has received a
response from the department, is within 180 days of release, or does not receive a response within
180 days after filing the complaint. Ex parte Stokes, 15 S.W.3d 532 (Tex. Crim. App. 2000); TEX.
GOV’T CODE § 501.0081(b).
The record reflects that petitioner did not file an Offender Time Credit Dispute Resolution
Form complaining about the forfeiture of his good time for filing frivolous lawsuits. Although
petitioner attempted to file a state habeas application raising that issue, it was dismissed because
petitioner did not follow the proper procedure. Because petitioner did not present his claims to the
Texas Court of Criminal Appeals in a procedurally correct manner, he has not exhausted state court
remedies. Therefore, this petition for writ of habeas corpus should be dismissed.
Certificate of Appealability
In this case, petitioner is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues
a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting
a certificate of appealability, like that for granting a certificate of probable cause to appeal under
prior law, requires petitioner to make a substantial showing of the denial of a federal constitutional
right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328
(5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial
showing, petitioner need not establish that he should prevail on the merits. Rather, he must
demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve
the issues in a different manner, or that the questions presented are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.
2009). If the petition was denied on procedural grounds, petitioner must show that jurists of reason
would find it debatable: (1) whether the petition raises a valid claim of the denial of a constitutional
right, and (2) whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484;
Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate of appealability is
resolved in favor of the petitioner, and the severity of the penalty may be considered in making this
determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
Here, petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason, or that a procedural ruling was incorrect. In addition, the questions
presented are not worthy of encouragement to proceed further. Petitioner has failed to make a
sufficient showing to merit the issuance of a certificate of appealability.
Fort the reasons set forth above, this petition for writ of habeas corpus will be dismissed. A
certificate of appealability will not be issued. A final judgment will be entered in accordance with
this memorandum opinion.
SIGNED this the 23 day of August, 2017.
United States District Judge
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