Trevino v. Stephens, Director TDCJ-CID
Filing
15
Memorandum Opinion and Order...petition dismissed w/o prej on exhaustion grounds; certificate of appealability denied. (Ordered by Judge John McBryde on 9/1/2013) (wrb)
· ·:.
U.S. DISTRICT COURT
.~ORTHERNDISTRICT OF TEXAS
\~'ii~f;:e#w'"' FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF Jiµ$
SEP - l 2813
. >
FORT WORTH DIVISION
CLERK, U.S. DISTRICT COURT
§
ROJELIO TREVINO,
. By
~.
Deputy
§
Petitioner,
§
§
v.
§
No. 4:13-CV-412-A
§
WILLIAM STEPHENS, 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, Rojelio Trevino, a state
prisoner currently incarcerated in Huntsville, Texas, against
William Stephens, 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 without prejudice on exhaustion
grounds.
I.
FACTUAL AND PROCEDURAL HISTORY
On October 20, 2010, a jury found petitioner guilty of three
burglaries that occurred on March 11, 2010, in Tarrant County,
_
I
Texas. 1
(OlClk's R. at 65; 02Clk's R. at 53; 03Clk's R. at 56 2 )
The trial court sentenced petitioner, an habitual offender, to
thirty-five years' confinement for each conviction.
Petitioner
appealed his convictions, but the Second Court of Appeals of
Texas affirmed the trial court's judgments, and, on October 24,
2012, the Texas Court of Criminal Appeals refused petitioner's
petitions for discretionary review.
Trevino v. State, Nos. 02-
10-00472-CR, 02-10-00473-CR & 02-10-00474-CR, slip op., 2012 WL
2428522 (Tex. App.-Fort Worth June 28, 2012); Trevino v. State,
PDR Nos. 1003-12, 1004-12 & 1005-12.
Petitioner did not seek
writ of certiorari or state postconviction habeas review.
II.
ISSUES
Petitioner raises four grounds for relief, which are
construed as follows:
(1)
The inference of guilt arising from possession of recently
stolen property at the time of arrest without reasonable
explanation showing honest acquisition of the property
violates his constitutional rights;
(2)
The court of appeals erred in finding a garage to be a
habitation where there was not a scintilla of evidence
'The jury acquitted petitioner of a fourth burglary charge.
"01Clk's R." refers to the trial court clerk's record in
Case No. 1193296D; "02Clk's R." refers to the trial court clerk's
record in Case No. 1193298D; and "03Clk's R." refers to the trial
court clerk's record in Case No. 1193299D.
2
2
reflecting the same:
(3)
The indictment fails to allege a culpable mental state; and
(4)
The trial court erred by failing to give notice to
petitioner and his trial counsel before answering a jury
question.
(Pet. at 6-7; Pet'r Mem. )
III,
5
RULE
STATEMENT
Respondent asserts the petition is not barred by limitations
or successive.
(Resp't Ans. at 8)
However, he believes
petitioner has failed to exhaust grounds (1),
(3) and (4) and
seeks dismissal of the petition without prejudice as a mixed
petition presenting both exhausted and unexhausted claims.
(Id.
at 8-13)
IV.
EXHAUSTION OF STATE COURT REMEDIES
Applicants seeking habeas corpus relief under
§
2254 are
required to exhaust all claims in state court before requesting
federal collateral relief.
28 U.S.C.
§
Texas, 169 F.3d 295, 302 (5th Cir. 1999).
2254(b)(l); Fisher v.
The exhaustion
requirement is satisfied when the substance of the federal habeas
claim has been fairly presented to the highest court of the
state.
O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999);
Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th
Cir. 1982).
For purposes of exhaustion, the Texas Court of
3
Criminal Appeals is the highest court in the state.
v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985).
Richardson
Thus, 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 postconviction habeas corpus proceeding pursuant to
article 11.07 of the Texas Code of Criminal Procedure.
See TEX.
CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2012).
Petitioner has not exhausted his state court remedies with
respect to grounds (1),
(3) and (4).
Although he raised his
first ground in his petition for discretionary review, the claim
was not raised in his brief on appeal.
Further, his third and
fourth grounds are raised for the first time in this federal
petition.
Because the state court has not yet had a fair
opportunity to consider the merits of the claims, the claims are
unexhausted for purposes of federal habeas review, and any ruling
from the federal court at this juncture would be premature. 3
Martinez v. Petitioner, 255 F.3d 229, 238
See
(5th Cir. 2001).
'Although the court has the discretion to stay and abey the
petition pending exhaustion, petitioner has not replied to
respondent's answer as to demonstrate a basis for staying this
habeas action.
Rhines v. Webber, 544 U.S. 269, 277-78 (2005).
Furthermore, petitioner has a state court remedy, and the federal
statute of limitations has not yet expired, infra n. 4.
4
Petitioner has not filed a state habeas application.
Thus,
he has an avenue to seek state relief on his complaints by way of
habeas corpus.
Thus, he must first pursue his state habeas
corpus remedies before seeking relief under § 2254.
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 (5th Cir. 1973); Frazier v. Jones,
466 F.2d 505, 506 (5th Cir. 1972).
Accordingly, dismissal of this federal habeas corpus
proceeding for lack of exhaustion is warranted so that petitioner
can fully exhaust his state court remedies as to all his claims
and then return to this court, if he so desires, after exhaustion
has been properly and fully accomplished. 4
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby,
dismissed without prejudice on exhaustion grounds.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
4
28 U.S.C. § 2244(d) imposes a one-year statute of
limitations for filing non-capital habeas corpus petitions in
federal court, subject to any applicable tolling.
See 28 U.S.C.
§ 2244 (d) (1) - (2).
5
Procedure, Rule ll(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 failed to exhaust his state court remedies with
respect to three of his four claims or made a substantial showing
of the denial of a constitutional right.
SIGNED September ~--''--~~' 2013.
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