Anderson v. Erwin

Filing 29

FINDINGS, CONCLUSIONS, AND RECOMMENDATION: The petitioner's motion to stay (doc. 21 ) should be DENIED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 6/22/2017) (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHAMEL NICOLE ANDERSON,
ID # 1811941,
Petitioner,
vs.
DEBBIE IRWIN,
Respondent.

)
)
)
)
)
)
)

No. 3:17-CV-310-D (BH)
Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Pursuant to Special Order No. 3-251, this habeas case has been automatically referred for
findings and recommendation. Before the Court is the petitioner’s Petition Motion for Stay, received
on June 20, 2017 (doc. 21). Based on the relevant filings and applicable law, the motion to stay
should be DENIED.
I. BACKGROUND
On February 2, 2017, the petitioner filed a habeas petition under 28 U.S.C. § 2254
challenging her state conviction for aggravated assault with a deadly weapon. (Doc. 2.) On May
25, 2017, the respondent filed an answer and argued that some of the claims are unexhausted. (Doc.
17 at 12-15.) On June 20, 2017, the petitioner filed a reply and moved to stay this action so that she
may return to state court to exhaust those claims. (See doc. 21, 22.)
II. STAY
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28
U.S.C. § 2254(b). To exhaust in accordance with § 2254, a petitioner must fairly present the factual
and legal basis of any claim to the highest available state court for review prior to raising it in
federal court. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier,
762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas,

a prisoner must present a claim to the Texas Court of Criminal Appeals in a PDR or an application
for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson,
762 F.2d at 432.
Where a federal petition for writ of habeas corpus contains unexhausted grounds for relief,
federal courts have the discretion to either stay and abate or dismiss the federal action. See Brewer
v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). A stay and abeyance should be granted only in
limited circumstances when there is good cause for the failure to exhaust, the unexhausted claims
are potentially meritorious, and there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics. See Rhines v. Weber, 544 U.S. 269, 278 (2005).
The petitioner has not met the Rhines standard. She has not explained or shown good cause
for her failure to previously raise any unexhausted claims in state court before filing her § 2254
petition. Nor has she alleged or shown that her unexhausted claims are meritorious.
III. RECOMMENDATION
The petitioner’s motion to stay (doc. 21) should be DENIED.
SO RECOMMENDED this 22nd day of June, 2017.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

2

INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
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 fourteen 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. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

3