Woodard v. Thaler
Filing
11
Memorandum Opinion and Order: Certificate of Appealability Denied. The court ORDERS that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, dismissed without prejudice on exhaustion grounds, except as to any application of the federal statute of limitations or other federal procedural bar that may apply. [see order for specifics] (Ordered by Judge John McBryde on 7/5/2012) (cxb)
u.s. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
COREY DEWAYNE WOODARD,
FILED
Jl. - 52012
CLERK, U.S. DISTRICT COURT
By_ _~--:_
§
§
Petitioner,
OURT
EXAS
Deputy
§
§
v.
§
No. 4:12-CV-195-A
§
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
u.s.C.
§
2254 filed by petitioner, Corey Dewayne Woodard, a state
prisoner currently incarcerated in Bonham, Texas, against Rick
Thaler, Director of the Texas Department of Criminal Justice,
Correctional Institutions Division (TDCJ), respondent.
After
having considered the pleadings, state court records, and relief
sought by petitioner, the court has concluded that the petition
should be dismissed on exhaustion grounds.
I.
FACTUAL AND PROCEDURAL HISTORY
The state court records and documentary evidence presented
by the parties reflect that petitioner is serving a 10-year
sentence for his 2010 conviction for aggravated robbery with a
deadly weapon in Tarrant County, Texas, Case No. 11475130, and a
concurrent 20-year sentence for his 2011 conviction for
possession of a controlled substance in Johnson County, Texas.
(Resp't Ans., Exs. A & B)
At issue in this proceeding, is
petitioner's 2010 Tarrant County conviction in Case No. 11475130.
Petitioner did not directly appeal the conviction, however he has
filed a state habeas application challenging the conviction,
which remains pending in the trial court at this time.
n.3 & Exs. C & 0)
(Id. at 3
This federal petition challenging his state
court conviction is deemed filed on March 27, 2012. 1
II.
RULE 5 STATEMENT
Respondent maintains that petitioner's claims have not been
properly exhausted in the state courts as required by 28 U.S.C.
§
2254(b) and (c), and seeks dismissal of the petition on
exhaustion grounds or denial of the petition on the merits.
(Id.
at 10)
III.
EXHAUSTION OF REMEDIES IN STATE COURT
Applicants seeking habeas corpus relief under
§
2254 are
required to exhaust all claims in state court before requesting
lA pro se habeas petition filed by an inmate is deemed filed
when the petition is placed in the prison mail system for
mailing.
See Spotville v. Cain, 149 F.3d 374, 377 (5 th Cir.
1998) .
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federal collateral relief.
28
u. S. C.
§
2254 (b) (1),
v. Texas, 169 F.3d 295, 302 (5 th Cir. 1999).
(c); Fisher
28 U.S.C.
§
2254(b)
and (c) provide in pertinent part as follows:
(b) (1) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless
it appears that (A) the applicant has exhausted the
remedies available in the courts of the
State; or
(B) (i) there is an absence of available
State corrective process; or
(ii) circumstances exist that render
such process ineffective to protect the
rights of the applicant.
(c) An applicant shall not be deemed to have
exhausted the remedies available in the courts of the
State, within the meaning of this section, 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 (b) (1),
(c).
A Texas prisoner may satisfy the exhaustion requirement by
presenting both the factual and legal substance of his claims to
the Texas Court of Criminal Appeals in either a petition for
discretionary review or, as in this case, a state habeas corpus
proceeding pursuant to article 11.07 of the Texas Code of
Criminal Procedure.
See TEX. CODE CRIM. PRoe. ANN. art. 11.07
(Vernon 2005); Alexander v. Johnson, 163 F.3d 906, 908-09 (5 th
3
Cir. 1998); Bd. of Pardons & Paroles v. Court of Appeals for the
Eighth Dist., 910 S.W.2d 481, 484 (Tex. Crim. App. 1995).
This court's written communication with the Tarrant County
Clerk's Office substantiates Thaler's assertion that petitioner
has not exhausted his state court remedies with respect to his
claims presented in this federal petition.
(Resp't Ans, Ex. C)
Petitioner's state habeas action remains pending in the trial
court at this time.
Consequently, the state's highest court has
not been afforded a fair opportunity to consider and rule on the
merits of one or more of petitioner's claims.
To the extent his
claims have not yet been considered by the Texas Court of
Criminal Appeals, the claims are unexhausted for purposes of
federal habeas review.
Petitioner must first pursue his state habeas corpus remedy
through completion before seeking relief under
§
2254.
Absent a
showing that state remedies are inadequate or ineffective, such
showing not having been demonstrated by petitioner, he cannot now
proceed in federal court in habeas corpus.
Accordingly,
dismissal of this petition for lack of exhaustion is warranted so
that petitioner can fully exhaust his state court remedies and
then return to this court, if he so desires, after exhaustion has
been properly and fully accomplished.
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For the reasons discussed herein,
The court ORDERS that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.
§
2254 be, and is hereby,
dismissed without prejudice on exhaustion grounds, except as to
any application of the federal statute of limitations or other
federal procedural bar that may apply.2
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Court, and 28 U.S.C.
§
2253(c), for
the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
petitioner has not made a substantial showing of the denial of a
constitutional right.
SIGNED July
~
~
,2012.
2U.
S . C . § 2244(d) imposes a one-year statute of limitations
for filing non-capital habeas corpus petitions in federal court,
sUbject to applicable tolling.
See 28 U.S.C. § 2244(d) (1)-(2).
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