Miller v. Director, TDCJ-CID

Filing 67

MEMORANDUM ORDER overruling respondent's objections and adopting 64 Report and Recommendation and granting 56 Motion for Stay and Abeyance. This action is STAYED and the case is ADMINISTRATIVELY CLOSED until such time as petitioner notifies the court that he has exhausted his grounds for relief in state court. Signed by District Judge Marcia A. Crone on 3/1/18. (tkd, )

UNITED STATES DISTRICT COURT

DEMONTRELL MILLER,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 6:15-CV-535

MEMORANDUM ORDER OVERRULING RESPONDENT’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Demontrell Miller, a death row inmate confined within the Texas Department
of Criminal Justice, Correctional Institutions Division, filed this petition for a writ of habeas
corpus challenging his conviction pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends that Petitioner’s Motion for Stay and Abeyance (#56) be granted
and the case be administratively closed until such time as Petitioner notifies the court that he has
exhausted his grounds for relief in state court.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings and all available evidence. Respondent filed
objections to the magistrate judge’s Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes
Respondent’s objections are without merit. Petitioner has satisfied the United States Supreme

Court’s requirements to stay and abate the case as set forth in Rhines v. Weber, 544 U.S. 269
(2005). He has shown good cause for the failure to exhaust, the claim is not plainly meritless, and
there is no indication that the failure to exhaust was for purposes of delay. Id. at 277-78. It is
specifically noted that Petitioner argues that his conviction was the product of false scientific
evidence, and the Texas Court of Criminal Appeals has been receptive to successive applications
for a writ of habeas corpus raising this type of claim. Ex parte Robbins, 478 S.W.3d 678, 690
(Tex. Crim. App. 2014); Ex parte Roberson, No. WR-63,081-03, 2016 WL 3543332, at *1 (Tex.
Crim. App. June 16, 2016). In her objections, Respondent focuses on the merits of Petitioner’s
claims, but such arguments are more appropriately considered by the Texas Court of Criminal
Appeals in the first instance.
ORDER
Accordingly, Respondent’s objections are OVERRULED. The findings of fact and
conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
ADOPTED. Petitioner’s Motion for Stay and Abeyance (#56) is GRANTED. The above-styled
and numbered petition for a writ of habeas corpus is STAYED and the case is
ADMINISTRATIVELY CLOSED until such time as Petitioner notifies the court that he has

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exhausted his grounds for relief in state court.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 1st day of March, 2018.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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