Andrews v. Anderson

Filing 10

MEMORANDUM OPINION andORDER granting 7 Motion to Dismiss filed by Dee Anderson. Respondent's motion to dismiss petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, granted and that the petition be, and is hereby, dismissed without prejudice on exhaustion grounds. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 6/15/2013) (npk)

u.s. DlSTRlCT COUln
NORTHERN DISTRICT OF TEXAS

FILED

Petitioner,

§
§

v.

No. 4:13-CV-326-A

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DEE ANDERSON, Sheriff,
Tarrant Co~nty, Texas,

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Respondent.

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MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
u.S.C.

§

2254 filed by petitioner, Bradley Harold Andrews, a

state prisoner currently incarcerated in the Tarrant County Jail
in Fort Worth, Texas, against Dee Anderson, Sheriff of Tarrant
County, Texas, respondent.

After having considered the

pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition should be dismissed
without prejudice on exhaustion grounds.
I.

FACTUAL AND PROCEDURAL HISTORY

The pleadings and state court records presented by the
parties reflect that petitioner is serving a 7-year sentence for
his August 12, 2011, burglary conviction in the 372 nd District
Court of Tarrant County, Texas.

(Pet., Ex. 1c)

Petitioner

appealed his conviction and sentence, but the Second District
Court of Appeals of Texas affirmed the trial court's judgment of
conviction by a jury, and, on March 27, 2013, the Texas Court of
Criminal Appeals refused petitioner's petition for discretionary
review.

(Pet., App. A)

See Texas Courts Online - Court of

Criminal Appeals, available at http://www.cca.courts.
state.tx.us., Case No. PD-1706-12.

Petitioner also filed an

application for postconviction state habeas relief, raising one
or more of the claims presented herein, which was dismissed by
the Texas Court of Criminal Appeals on May 22, 2013, because his
(Pet'r Packet "PDR")

direct appeal was still pending.
No. WR-79,374-01.

Id., Case

This federal habeas petition was filed on

April 16, 2013. 1

II.

ISSUES

Petitioner's raises four grounds for relief:

(1) he

received ineffective assistance of trial counsel,

(2) the

prosecution coerced the alleged victims to lie under oath,

(3)

the sentence is excessive, and (4) the trial judge denied pro se
motions and prevented the substitution of counsel.

(Pet. at 6-7)

'A prisoner's habeas petition is deemed filed when it is placed
in the prison mailing system for mailing.
Spotville v. Cain, 149
F.3d 374, 377 (Sili Cir. 1998).

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III.

RULE 5 STATEMENT

Respondent has filed a motion to dismiss the petition,
wherein he 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).

IV.

(Resp't Mtn to Dismiss at 4-6)

EXHAUSTION OF REMEDIES IN STATE COURT

Applicants seeking habeas corpus relief under

§

2254 are

required to exhaust all claims in state court before requesting
federal collateral relief.
(5 th Cir. 1999).

28 U.S.C.

Fisher v. Texas, 169 F.3d 295, 302
§

2254(b) and (c) provide in

pertinent part:
(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) (I),

(c).

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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 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 (West Supp. 2012) i Alexander

v. Johnson, 163 F.3d 906, 908-09 (5 th Cir. 1998).
Petitioner has filed a response to respondent's motion,
stating:
Petitioner disagrees and his petition for writ of
habeas corpus should not be dismissed because
petitioner has exhausted his state remedies in part.
Therefore, petitioner would choose to eliminate the
unexhausted claims and proceed with an amended
petition.
(Pet'r Resp. at 2)
In his "amended petition," petitioner reasserts his
ineffective assistance of counsel claims and states that he
wishes to exclude issues (2) through (4) and prosecute this
habeas corpus proceeding to its conclusion.

Accordingly, it is

necessary to review the proceedings in the Texas Court of
Criminal Appeals to determine whether petitioner has exhausted
his ineffective assistance claims in that court for purposes of
2254(b) and (c).

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Petitioner's amended petition claims counsel was ineffective
in the totality of his representation, generally, because (a)
counsel failed to provide notice of the existence of a state bar
grievance process pursuant to

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Code,

impeded and deprived petitioner his

(b) counsel frustrated,

81.079{b) of the Texas Government

due process rights with respect to reasonable representation
through various acts and omissions, including alluding to
petitioner's election not to testify in violation of article
38.08 of the Texas Code of Criminal Procedure,

(c) counsel failed

to conduct a factual investigation of the case, and (d) counsel
"engaged in communication with petitioner that cannot be regarded
as anything less than 'malicious,'" causing an irreparable
conflict between attorney and client.

{Pet'r Resp. to MTD at 6;

Pet'r Mem. at 1-2)
In his petition for discretionary review, petitioner claimed
only that counsel was ineffective for alluding to his election
not to testify in violation of article 38.08.
at 1)

(Packet "PDR" , PDR

Although petitioner raised additional ineffective

assistance claims in his state habeas application, the
application was dismissed because petitioner's direct appeal
remained pending.

As such, the only ineffective assistance claim

that has been fully exhausted is petitioner's claim that counsel
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violated article 38.08 by alluding to his election not to
testify.
Consequently, the state's highest court has not been
afforded a fair opportunity to consider the merits of
petitioner's claims, save for one, and the claims are unexhausted
for purposes of federal habeas review.

Absent a showing that

state remedies are inadequate, such showing not having been
demonstrated by petitioner, he cannot now proceed in federal
court in habeas corpus.

See 28 U.S.C. §2254; Fuller v. Florida,

473 F.2d 1383, 1384 (5 th Cir. 1973); Frazier v. Jones, 466 F.2d
505, 506 (5 th Cir. 1972).

Petitioner maintains the right to

pursue state corrective process via a state habeas application,
which may also assist him in further developing the record.
Further, if the court proceeds at this juncture, only one of
petitioner's claims would likely be addressed on its merits, and
any subsequent federal petition raising the remaining claims once
exhausted may be considered a "second or successive" petition
under 28 U.S.C. § 2244(b) (2).

The statute encourages exhaustion

to avoid such piecemeal and successive federal filings.
For the reasons discussed herein,
The court ORDERS that respondent's motion to dismiss
petitioner's petition for a writ of habeas corpus pursuant to 28

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U.S.C.

§

2254 be, and is hereby, granted and that the petition

be, and is hereby, dismissed without prejudice on exhaustion
grounds.
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 neither demonstrated that his claims have been
exhausted nor has he made a substantial showing of the denial of

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a constitutional right.
SIGNED June

I $

,

2013.

JOHN MCBRYDE
UNITED STATES

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