Guy v. Director TDCJ-CID et al

Filing 21

MEMORANDUM OPINION and ORDER of dismissal. Ordered that the Respondent's 14 motion to dismiss as unexhausted is hereby granted and that the Petitioner's application for writ of habeas corpus is dismissed without prejudice for failure to e xhaust state remedies. Ordered that the Petitioner Bennie Guy is hereby denied a certificate of appealability sua sponte. Ordered that any and all motions which may be pending in this cause, including but not limited to the Petitioner's motions for subpoenas and a writ of habeas corpus ad testificandum (docket no. 19) and motion for appointment of counsel (docket no 20) are hereby denied. Signed by Magistrate Judge Judith K. Guthrie on 7/10/2013. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
BENNIE DAVID GUY

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v.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:13cv224

MEMORANDUM OPINION AND ORDER OF DISMISSAL
The Petitioner Bennie David Guy, an inmate currently confined in the Gregg County Jail
proceeding pro se, filed this application for the writ of habeas corpus under 28 U.S.C. §2254
complaining of the legality of his Texas conviction. The parties have consented to allow the
undersigned United States Magistrate Judge to enter final judgment in the proceeding pursuant to
28 U.S.C. §636(c).
Guy pleaded guilty in the 124th Judicial District Court of Gregg County, Texas to a charge
of sexual assault on July 18, 1996, receiving a sentence of 40 years in prison. He is also serving
concurrent sentences for rape in the State of Arkansas, although one of his Arkansas convictions
appears to have been set aside.
In his petition, Guy raises six grounds for relief. These are: (1) he is actually innocent; (2)
he received ineffective assistance of counsel under rules set out in two recently decided Supreme
Court cases; (3) he has not had DNA testing as required by law; (4) the State of Texas breached the
plea agreement; (5) he is entitled to a new trial under federal law; and (6) the State of Texas has
violated the Interstate Agreement on Detainers. He states that he has been exonerated through DNA
testing of one of the sexual assaults for which he was convicted in the State of Arkansas.

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In an amended complaint, Guy adds a new claim, which enlarges upon his claim of actual
innocence. He presents a written confession from a person named Billy Stewart, dated May 12,
2013, asserting that he, Stewart, was the actual perpetrator of the sexual assault in Texas for which
Guy was convicted.
The Respondent has been ordered to answer the petition and has filed a motion to dismiss.
In this motion, the Respondent argues that Guy’s petition is successive and that it is unexhausted
because Guy has not presented his claims for relief to the courts of the State of Texas. Guy did not
file a reply to the motion to dismiss, but argues in his original petition that he was denied counsel
for appeal and post-conviction collateral proceedings in state court. Guy concedes that his claims
have not been raised in state court, but says that “there is no remedy now in the State of Texas courts
in which to raise these claims. However, the 2012 Supreme Court ruling in the cases of Martinez
v. Ryan and Maples v. Thomas will override the procedural bar.”
Legal Standards and Analysis
The Fifth Circuit has stated that 28 U.S.C. §2254(b)(1)(A) requires that federal habeas
petitioners fully exhaust available state court remedies before proceeding in federal court. Morris
v. Dretke, 413 F.3d 484, 490 (5th Cir. 2005). This requirement is not jurisdictional but reflects the
policy of federal-state comity, which is designed to give state courts the initial opportunity to
consider and correct violations of their prisoners’ federal rights. Anderson v. Johnson, 338 F.3d 382,
386 (5th Cir. 2003).
The exhaustion requirement is satisfied when the substance of the federal claim has been
fairly presented to the highest state court. Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). This
may be done through direct appeal or in state habeas proceedings. Morris, 413 F.3d at 491, citing
Orman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000). Evidence placing the petitioner’s claims in a
significantly different legal posture must first be presented to the state courts. Anderson, 338 F.3d
at 387.

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The Fifth Circuit has also observed that the exhaustion requirement may under certain
circumstances be excused. For example, “a petitioner may overcome such a procedural default,
however, and obtain federal habeas corpus review of his barred claims on the merits if he can
demonstrate cause for the defaults and actual prejudice.” Morris, 413 F.3d at 491, citing Martinez
v. Johnson, 225 F.3d 229, 239 (5th Cir. 2001). The petitioner may also overcome a procedural
default if he can show that failure to consider the claims will result in a fundamental miscarriage of
justice. Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). Finally, the Fifth Circuit
explained that exhaustion is not required if it would be “plainly futile,” meaning that there is no
opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to
render futile any effort to obtain relief. Graham v. Johnson, 94 F.3d 958, 969 (5th Cir. 1996).
In his amended petition, Guy offers the affidavit of Billy Stewart confessing to the offense
for which Guy was convicted. This affidavit was executed on May 12, 2013, and plainly has not
been presented to the courts of the State of Texas. Furthermore, in his original petition, Guy states
as follows:
Petitioner Guy knows his petition is in procedural default for failing to first raise his
claims in state court. (Petitioner Guy has no Texas forms code or annotated books
to use to file his state remedies). Petitioner Guy for his part would concede that these
claims were not initially raised in state court, but there is no remedy now in the courts
of the State of Texas in which to raise these claims. However, the 2012 Supreme
Court ruling in case of Martinez v. Ryan and Maple v. Thomas will override the
procedural bar. Petitioner Guy knows of no remedies that would be available in state
court 18 years later.
Guy’s contention that no state remedies exist is incorrect. In Ex Parte Tuley, 109 S.W.3d 388
(Tex.Crim.App. 2002), the petitioner pleaded guilty to aggravated sexual assault, but some years
later, the alleged victim recanted and other affidavits were offered tending to support this recantation
and prove the petitioner’s innocence. The Texas Court of Criminal Appeals held that the petitioner’s
actual innocence claim was cognizable in state habeas corpus despite his guilty plea and granted
relief, holding that “we are convinced by clear and convincing evidence that no rational jury would
convict the applicant in light of the new evidence.”

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Guy offers nothing to show that his actual innocence claim, supported by Stewart’s affidavit,
would not be cognizable in the courts of the State of Texas through a habeas corpus petition under
Article 11.07 of the Texas Code of Criminal Procedure. See Ex Parte Brown, 205 S.W.3d 538, 544
(Tex.Crim.App. 2006) (noting that “we have held that claims of actual innocence based upon newly
discovered evidence are cognizable on post-conviction writs of habeas corpus,”) citing Ex Parte
Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996). Nor has he shown that the other claims
which he raises in his petition are not cognizable in state habeas corpus, or that the state habeas
corpus remedy would be “plainly futile.” See Graham v. Johnson, 94 F.3d 958, 969 (5th Cir. 1996),
citing Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19 (1981).
Similarly, Guy has not shown cause for his failure to exhaust state remedies, nor has he
shown that a fundamental miscarriage of justice would occur if his federal habeas petition is not
considered without giving the state courts the first opportunity to consider the claims which he
presents. Even though he was confined in Arkansas prior to his transfer back to Texas, he fails to
show that he could not have contacted the state trial court or the Texas Court of Criminal Appeals
to obtain the necessary forms with which to seek state habeas corpus relief. Guy has demonstrated
no valid basis upon which to excuse or vitiate the requirement of exhaustion of state remedies.
The cases which Guy cites offer him no support. In Martinez v. Ryan, 132 S.Ct. 1309 (2012),
the Supreme Court held that inadequate assistance of counsel at the state court initial review
collateral proceedings could establish cause for a procedural default of an ineffective assistance of
counsel claim relating to trial counsel. In this case, Guy has not conducted any collateral
proceedings in the state courts, and the question of his entitlement to counsel at such proceedings
is a matter for the state courts to determine.
In Maples v. Thomas, 132 S.Ct. 912 (2012), the petitioner’s attorneys in post-conviction
collateral proceedings abandoned him without notice, with the result that he failed to appeal the
denial of post-conviction relief; this failure to appeal was later deemed a procedural default during
federal habeas corpus proceedings. The Supreme Court held that the abandonment of the petitioner
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by his attorneys amounted to adequate cause to excuse the procedural default, and remanded the case
for a determination of prejudice. As with Martinez, this case does not speak to the present situation,
in which Guy has not undertaken post-conviction collateral review at all, nor has he presented any
of his claims to the highest court for the State of Texas.
The Supreme Court has held that when a petitioner fails to exhaust his state court remedies
fully, the petition must be dismissed. Rose v. Lundy, 455 U.S. 509, 522 (1982); accord Graham v.
Johnson, 168 F.3d 762, 778 (5th Cir. 1999). In this case, Guy indicates and the Respondent confirms
that none of the issues which he raises in his federal petition have been presented in the state courts.
There is no basis upon which to conclude that the state courts would refuse to consider his claims.
It is accordingly
ORDERED that the Respondent’s motion to dismiss as unexhausted (docket no. 14) is hereby
GRANTED and that the Petitioner's application for the writ of habeas corpus is DISMISSED without
prejudice for failure to exhaust state remedies. 28 U.S.C. §2254(b). It is further
ORDERED that the Petitioner Bennie Guy is hereby DENIED a certificate of appealability
sua sponte. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). The denial of the certificate
of appealability refers only to a dismissal of the present habeas petition and shall have no effect upon
the Petitioner’s right to present his claims to the courts of the State of Texas, nor upon his right to
again seek relief in federal court in the event that he does not obtain the relief which he seeks in state
court. Finally, it is hereby
ORDERED that any and all motions which may be pending in this cause, including but not
limited to the Petitioner’s motions for subpoenas and a writ of habeas corpus ad testificandum
(docket no. 19) and motion for appointment of counsel (docket no. 20) are hereby DENIED.

So ORDERED and SIGNED this 10 day of July, 2013.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE
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