Leatherman v. Davis

Filing 49

Opinion and Order: For the reasons discussed herein, Petitioner's motion to stay is DENIED and his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice for lack of exhaustion of state court reme dies. Further, a certificate of appealability is DENIED as Petitioner has not made a substantial showing of the denial of a constitutional right or demonstrated that reasonable jurists would question this Courts procedural ruling. (Ordered by Judge Reed C. O'Connor on 2/20/2018) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
PAT DEE LEATHERMAN,
Petitioner,
V.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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CIVIL ACTION NO. 4-17-CV-660-O

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 Pat Dee Leatherman, a state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ,
Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded
that the petition should be dismissed without prejudice on exhaustion grounds.
I. BACKGROUND
On September 9, 2002, pursuant to a plea agreement, Petitioner pleaded guilty in Parker
County, Texas, Case No. 14266, to murdering his wife and was sentenced to 30 years’ confinement.
Pet. 2-3, ECF No. 7. Petitioner did not appeal his conviction or sentence. Id. at 3. He did, however,
challenge his conviction in three post-conviction state habeas-corpus applications, filed between
2003 and 2007, to no avail. Adm. R., ECF No. 38.
II. ISSUES
In this federal petition, Petitioner raises three grounds for relief, in which he claims he
received ineffective assistance of trial counsel; the state violated Brady by withholding the recording
of a phone call made by Mildred King to Darlene Leatherman in January 2002; and newly discovered

evidence of his innocence in the form of–
affidavits from Darlene Leatherman, Doy Lou Leatherman, Pat Dee Leatherman, and
Jennifer Fikes; a hand written letter from Mary Carol Baldree; a documented
interview between Attorney Michael K. Burns and Bobbie Whitworth.
Pet. 6-7, ECF No. 7.
III. RULE 5 STATEMENT
In her preliminary answer, Respondent asserts that Petitioner did not properly exhaust his
state court remedies as to the claims raised and that the petition should therefore be dismissed
without prejudice so that Petitioner may exhaust his claims in state court. Resp’t’s Answer 1, 4-6,
ECF No. 37.
IV. EXHAUSTION
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in
the state courts before requesting federal habeas relief. 28 U.S.C. § 2254(b)(1), (c)1; Fisher v. Texas,
169 F.3d 295, 302 (5th Cir. 1999). A state petitioner may satisfy the exhaustion requirement by
presenting both the factual and legal substance of his claim(s) to the Texas Court of Criminal

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The terms of 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.

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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.
PROC. ANN. art. 11.07 (West 2015); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998);
Bd. of Pardons & Paroles v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 484 (Tex. Crim.
App. 1995). Petitioner has not yet filed a state habeas-corpus application raising the claims presented
and acknowledges that one or more of his claims is raised for the first time in this petition. Pet. 8,
ECF No. 7. Petitioner seeks a stay of this proceeding so that he may return to state court for purposes
of exhausting his claims. Mot., ECF No. 47.
In limited circumstances, for good cause shown, stay and abeyance is available to allow a
petitioner to return to state court to exhaust his previously unexhausted claims. A stay is appropriate
when there is (1) good cause for the failure to exhaust, (2) the unexhausted claims are potentially
meritorious, and (3) there is no indication that the petitioner engaged in intentionally dilatory
litigation tactics. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Petitioner provides no reason for
his failure to exhaust his state court remedies or proof that he has filed a state habeas-corpus
application in an effort to exhaust his claims. The squandering of such an opportunity is exactly what
the exhaustion requirement was designed to prevent and, as such, should not be excused.
V. CONCLUSION
For the reasons discussed herein, Petitioner’s motion to stay is DENIED and his petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice for lack of
exhaustion of state court remedies. Further, a certificate of appealability is DENIED as Petitioner
has not made a substantial showing of the denial of a constitutional right or demonstrated that

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reasonable jurists would question this Court’s procedural ruling.
SO ORDERED on this 20th day of February, 2018.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

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