McDonald v. Strong
Filing
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OPINION AND ORDER: Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Joe Don McDonald, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correcti onal Institutions Division, Respondent. After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be dismissed for failure to exhaust state-court remedies. (Ordered by Senior Judge Terry R Means on 4/18/2017) (hth)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JOE DON MCDONALD,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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Civil Action No. 4:16-CV-404-Y
OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Joe Don McDonald,
a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions Division,
Respondent. After having considered the pleadings and relief sought
by Petitioner, the Court has concluded that the petition should be
dismissed for failure to exhaust state-court remedies.
I.
Factual and Procedural History
On January 16, 2014, in the 355th Judicial District Court,
Hood County, Texas, Case No. CR12488, Petitioner pleaded guilty to
one count of delivery of a controlled substance, methamphetamine
(one gram or more but less than four grams) and true to the
enhancement paragraph as alleged in the indictment. A jury assessed
his punishment at 40 years’ confinement. (Adm. R., Clerk’s R. 7-8,
ECF No. 13-9.) Petitioner appealed his conviction, and the Second
District Court of Appeals of Texas affirmed the trial court’s
judgment, and, on October 14, 2015, the Texas Court of Criminal
Appeals refused Petitioner’s petition for discretionary review.
(Id., Mem. Op. 12-13, ECF No. 13-3.) Petitioner did not seek a writ
of certiorari or file a postconviction state habeas application.
(Pet. 3, ECF No. 1; Resp’t’s Preliminary Resp., Ex. A, ECF No. 11.)
This federal habeas petition was filed on May 22, 2016. Spotville
v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). Respondent has filed a
preliminary response asserting the petition should be dismissed on
exhaustion grounds. (Resp’t’s Preliminary Resp. 3-5, ECF No. 11.)
II.
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. See 28 U.S.C. § 2254(b)(1), (c); Fisher
v. State, 169 F.3d 295, 302 (5th Cir. 1999). 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 Criminal Appeals is
the highest court in the state. Richardson v. Procunier, 762 F.2d
429, 431 (5th Cir. 1985). 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
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either a petition for discretionary review or a postconviction
habeas-corpus application pursuant to article 11.07 of the Texas
Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art.
11.07 (West Supp. 2013); Anderson v. Johnson, 338 F.3d 382, 388
n.22 (5th Cir. 2003).
Petitioner raises two grounds for relief: (1) prosecutorial
misconduct and (2) double-jeopardy violation. (Pet. 6, 11-13, ECF
No. 1.) The first claim, raised for the first in this federal
petition, is unexhausted for purposes of § 2254(b)(1). The second
claim, although raised in Petitioner’s petition for discretionary
review, was not properly filed. While a petitioner need not file
both a petition for discretionary review and a state application
for habeas-corpus relief to exhaust his claims for federal habeas
review,
claims
raised
for
the
first
time
in
a
petition
for
discretionary review are not exhausted for federal habeas-corpus
purposes if, as in this case, the petitioner did not file a state
petition for habeas-corpus relief. Castille v. Peoples, 489 U.S.
346, 351 (1989); Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir.
1990). The Texas Court of Criminal Appeals does not entertain
claims raised for the first time in a petition for discretionary
review. Ex parte Queen, 877 S.W.2d 752, 755 n.4 (Tex. Crim. App.
1994).
Clearly, the Texas Court of Criminal Appeals has had no
opportunity to review Petitioner’s claims and render a decision.
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Therefore, a ruling from this Court at this juncture would preempt
the state court from performing its proper function. See Rose v.
Lundy, 455 U.S. 509, 518 (1982) (the exhaustion requirement is
“designed to protect the state courts’ role in the enforcement of
federal
law
proceedings”).
and
prevent
the
Consequently,
disruption
Petitioner
of
must
state
first
judicial
pursue
to
completion his state court remedies, via a state habeas application
under article 11.07, before seeking relief under § 2254. Absent a
showing
that
no
state
“corrective
process”
is
available
to
Petitioner or that such process is somehow rendered ineffective by
the circumstances of his case, Petitioner cannot now proceed in
federal
court
in
habeas
corpus.
28
U.S.C.
§
2254(b)(1)(B).
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.
The Court is aware that, since the filing of a federal
petition for habeas relief does not toll the federal limitations
period, Petitioner may likely be time-barred under the federal
statute of limitations in 28 U.S.C. § 2244(d)(1) if and when he
returns to this Court after exhausting his state remedies relating
to his claims. Under these circumstances, this Court has the
discretion to either abate or dismiss a federal habeas action
pending resolution of state habeas proceedings. See Brewer v.
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Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, abatement of
the instant proceeding pending any future federal-court proceedings
is not warranted in this case. 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,
Respondent’s
277
(2005).
preliminary
Petitioner
response
or
did
not
otherwise
respond
assert
to
any
explanation for his failure to exhaust his claims first in state
court.
III.
Conclusion
For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
without prejudice for failure to exhaust state-court remedies.
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. The certificate of appealability may
issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under this standard, when a district court denies
habeas relief by rejecting constitutional claims on their merits,
‘the petitioner must demonstrate that reasonable jurists would find
the
district
court’s
assessment
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of
the
constitutional
claims
debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498 (5th
Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When the district court denies the petition on procedural grounds
without reaching the merits, the petitioner must show “that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). This inquiry involves two components, but a court
may deny a certificate of appealability by resolving the procedural
question only. Petitioner has not made a showing that reasonable
jurists would question this Court’s procedural ruling. Therefore,
a certificate of appealability should not issue.
SIGNED April 18, 2017.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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