Reighley v. The State of Texas et al
ORDER ACCEPTING THE 4 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. (Ordered by Chief Judge Barbara M.G. Lynn on 3/9/2018) (ykp)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
THE STATE OF TEXAS, ET AL.,
ORDER ACCEPTING THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
After making an independent review of the pleadings, files, and records in this
case, the Findings, Conclusions, and Recommendation of the United States Magistrate
Judge dated February 8, 2018 [Dkt. No. 4] and the objections filed by Petitioner
Michael Reighley [Dkt. Nos. 11, 12, & 14], to which no response was filed, the Court
finds that the Findings, Conclusions, and Recommendation of the magistrate judge are
correct, and they are accepted.
However, the Court will address the assertion in Reighley’s objections that
because since he filed his habeas petition, Reighley has been convicted and sentenced
in state court, the Court should convert his petition to one under 28 U.S.C. § 2254 and
allow it to proceed here even though Reighley has not “exhausted the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).
Even if the petition filed here prior to Reighley’s conviction in state court is
converted to one under Section 2254, Reighley offers no credible reason why the Court
should excuse the exhaustion requirement. He does not – and cannot – argue that
there is no “available State corrective process.” 28 U.S.C. § 2254(b)(1)(B)(i).
But Reighley does appear to argue that appointment-of-counsel issues in the
state trial court may be interfering with his ability to file a timely direct appeal. Even
if that may be the case, Reighley has not shown that those issues “render [the State
corrective] process ineffective to protect [his] rights.” Id. § 2254(b)(1)(B)(ii); cf. Martinez
v. Johnson, 255 F.3d 229, 238 n.10 (5th Cir. 2001) (holding that “failure to provide
‘competent’ counsel for a state habeas petition does not fall under the general catch-all
exception provided in 28 U.S.C. § 2254(b)(1)(B)(ii)”).
The Court also rejects Reighley’s argument that the exhaustion requirement
should be excused. The United States Court of Appeals for the Fifth Circuit
has questioned whether the futility exception, which existed pre-AEDPA,
exists post-enactment. Nonetheless, courts have recognized AEDPA’s
statutory language implies the exception is viable and have continued to
apply it. Jones v. Jones, 163 F.3d 285, 298 (5th Cir. 1998) (“Our court has
not addressed whether the futility exception ... survived AEDPA’s
enactment. But, ... the language of § 2254(b)(1)(B) is substantially
identical to the language of pre-AEDPA § 2254(b), upon which the ...
exception appears to be based.”). See Fisher v. Texas, 169 F.3d 295, 303
(5th Cir. 1999) (applying exception).
Lewis v. Cockrell, 58 F. App’x 596, 2003 WL 261847, at *4 (5th Cir. 2003) (per curiam)
In Lewis, the Fifth Circuit assumed the futility exception exists and then noted
[t]he exception is quite limited, applying only “when ... the highest state
court has recently decided the same legal question adversely to the
petitioner”. Id. (emphasis added). But, “the likelihood of failure of a claim
in state court is no excuse for not presenting it there.” Beazley v. Johnson,
242 F.3d 248, 269 (5th Cir.) (emphasis in original) (citing Engle v. Isaac,
456 U.S. 107, 130 (1982) (“If a defendant perceives a constitutional claim
and believes it may find favor in the federal courts, he may not bypass the
state courts simply because he thinks they will be unsympathetic to the
claim. Even a state court that has previously rejected a constitutional
argument may decide, upon reflection, that the contention is valid.”
(second emphasis added))).
Id. (citations modified and emphasis in original). “Therefore, to excuse exhaustion,
[Reighley] must show far more than a likelihood of failure. He must show: the state
court had a full and fair opportunity to decide the same issue in a recent case; and
interests of comity and federalism are served by excusing the failure to exhaust.” Id.
As reflected in the Findings, Conclusions, and Recommendation, prior to filing
this action, Reighley pursued pretrial habeas relief in the state courts, requesting that
Section 33.021(c) and (d) of the Texas Penal Code be declared unconstitutional –
specifically, that those subsections “contradict each other on the intent element,
thereby causing the statute to be internally inconsistent and unconstitutional on its
face.” Ex parte Reighley, No. 10-16-00225-CR, 2017 WL 3927192, at *1 (Tex. App. –
Waco Sept. 6, 2017, no pet.).
The trial court in Johnson County denied his habeas petition. And, on
September 6, 2017, the Waco Court of Appeals dismissed his appeal for lack of
jurisdiction. See id. (“In Ex Parte Ingram, the defendant also argued that Subsections
(d) (2) and (d) (3) are unconstitutional because they impermissibly negate the mens rea
requirement of the statute. The [Texas Court of Criminal Appeals (“CCA”)] held that
issue is not cognizable on a pre-trial writ of habeas corpus. Therefore, we do not have
jurisdiction to consider Reighley’s arguments on appeal.” (citing Ex parte Ingram, 533
S.W.3d 887 (Tex. Crim. App. 2017))).
Reighley now urges the Court to conclude that the CCA’s recent consideration
of the same legal question in Ingram allows this action to go forward under Section
2254 without the need for Reighley to exhaust his claims in state court. But, as
Reighley concedes, the CCA in Ingram “did in fact dismiss the same statutory facial
issue being presented as premature since respondent had yet to be convicted.” Dkt. No.
11 at 7. Regardless, he continues, the CCA “continued in great detail in providing its
analysis on how it would still hold such statute constitutional.” Id.; see, e.g., Ingram,
553 S.W.3d at 892-93 (“It follows that an anti-defensive issue is not law applicable to
the case at the pretrial habeas stage. That is a problem for appellant because, even in
the First Amendment context, a defendant has standing to challenge a statute only if
it is being invoked against him. At this juncture, subsections (d)(2) and (d)(3) have not
been invoked in appellant’s case, and, therefore, he cannot meet the basic standing
requirement necessary to obtain relief.... Standing concerns aside, the fact that a
freestanding anti-defensive issue does not become law applicable to the case until
raised by the evidence means that a constitutional challenge involving such an issue
is one that requires record development to substantiate.... [U]nless the defendant relies
upon a constitutional right that includes a right to avoid trial, developing the record
at a pretrial habeas proceeding is inappropriate, and so it follows that the proper
remedy would be to litigate the constitutionality of a freestanding anti-defensive issue
at trial if the issue is raised by the evidence at trial.” (footnotes omitted)).
In Ingram, the standing issues related to challenging the statute prior to trial
prevented the CCA from directly addressing the legal question that Reighley now
wants this Court to decide – apparently, for the first time in a post-conviction posture
and without the benefit of the Texas’s highest court weighing in on the issue in that
posture. This Court cannot therefore find that exhaustion is futile. After all, it is
possible that the CCA, in the posture of Reighley’s case, “may decide, upon reflection,
that the contention [raised in Ingram] is valid.” Engle, 456 U.S. at 130. At the very
least, comity and federalism require that this Court afford the CCA a “full and fair
opportunity to decide the same issue” in a post-conviction context. Lewis, 2003 WL
261847, at *4.
IT IS, THEREFORE, ORDERED that the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge are accepted. And the Court
DISMISSES this habeas petition without prejudice to Petitioner Michael Reighley’s
right to pursue and exhaust available state court remedies.
SO ORDERED this 9th day of March, 2018.
BARBARA M. G. LYNN
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