Hayworth v. Director, TDCJ-CID

Filing 22

Opinion and Order: For the reasons discussed, the Court DISMISSES Petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, without prejudice, for failure to exhaust state-court remedies. A certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 10/18/2017) (edm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RICKY DON HAYWORTH,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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Civil Action No. 4:17-CV-024-Y

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Ricky Don
Hayworth, 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 March 25, 2014, in the 355th Judicial District Court, Hood
County, Texas, Case No. CR12533, Petitioner, pursuant to a plea
agreement, pleaded guilty to assault of a family member and, with
a prior such conviction, was placed on eight years’ deferredajudication community supervision and assessed a $1500 fine. (Adm.
R., Clerk’s R. 23, doc. 15-7.) Petitioner did not directly appeal

the trial court’s order of deferred adjudication. Thereafter, based
on various violations of his community supervision, the state moved
to proceed to adjudication of Petitioner’s guilt, and, on December
14, 2015, the trial court adjudicated his guilt and sentenced him
to

eighteen

years’

confinement.

(Id.,

Mot.

29-30

&

J.

48.)

Petitioner appealed the trial court’s judgment adjudicating guilt,
but the Second District Court of Appeals of Texas affirmed. (Id.
Mem. Op. 4, doc. 15-3.) Petitioner did not seek further direct
review or challenge the judgment adjudicating guilt in a state
habeas-corpus application under article 11.07 of the Texas Code of
Criminal Procedure. (Pet. 3-4, doc. 1; Resp’t’s Preliminary Answer,
Exs. A & B, docs. 13, 13-1 & 13-2.) Petitioner filed this federal
habeas petition attacking the judgment on January 3, 2017. (Pet.
10, doc. 1.) Respondent has filed a preliminary answer requesting
that the petition be dismissed without prejudice for failure to
exhaust state-court remedies. (Resp’t’s Preliminary Answer 4-6,
doc. 13.) Petitioner raises three grounds for relief. (Pet. 6-7,
doc. 1.)
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

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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
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 2015); Anderson v. Johnson, 338 F.3d 382, 388 n.22 (5th Cir.
2003).
Petitioner did not file a petition for discretionary review in
the Texas Court of Criminal Appeals nor has he demonstrated that he
filed a postconviction state habeas-corpus application pursuant to
the procedures provided in article 11.07 of the Texas Code of
Criminal Procedure. Because there has been no fair presentation of
Petitioner’s claims to the Texas Court of Criminal Appeals, the
claims are unexhausted. 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. See 28 U.S.C.
§ 2254(b)(1)(B). Accordingly, dismissal of this petition for lack

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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.1
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

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

1

Title 28 U.S.C. § 2244(d) imposes a one-year statute of limitations for
filing habeas-corpus petitions in federal court, subject to any applicable
tolling. See 28 U.S.C. § 2244(d)(1)-(2).

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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 October 18, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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