Armenta v. Stephens

Filing 33

ORDER denying 32 Motion to Stay.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(sscotch, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
FRANK ARMENTA,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

December 08, 2015
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:14-CV-445
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ORDER

Petitioner has moved the Court to stay this action to allow him time to exhaust his
state court remedies. (D.E. 32). After consideration, the Motion is DENIED. Petitioner
filed this action on October 31, 2014, challenging his 2013 Nueces County conviction for
operating a motorized vehicle in a public place while intoxicated in violation of Texas
Penal Code § 49.04.1 (D.E. 1). On April 7, 2015, Respondent filed a Motion for
Summary Judgment and on June 17, 2015, Magistrate Judge Jason B. Libby entered a
Memorandum and Recommendation (“M & R”) recommending Petitioner’s case be
summarily dismissed. (D.E. 26). On July 9, 2015, Petitioner, in his objections to the M
& R, raised a ground for relief not previously raised in either his state or federal habeas
petitions.2 Specifically, Petitioner asserted his indictment is “void” on its face and his
sentence is illegal because the indictment incorrectly lists prior offenses 16650 and
1

Pursuant to a plea agreement, Petitioner pled guilty, pled true to two prior DWI convictions and
pursuant to the terms of the plea agreement, the trial court found him guilty and sentenced him to
seven (7) years’ imprisonment. (D.E. 22-2, Pages 62-70 and D.E. 22-3, Pages 1-11).
2
Petitioner had previously raised the following grounds for relief: (1) illegal sentence; (2)
involuntary plea; (3) insufficient evidence; (4) prosecutorial misconduct; and (5) ineffective
assistance of counsel. (D.E. 1, Pages 12-13).
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F280636 which are said to have occurred on March 28, 1991 in “the Superior Court of
California of San Luis Obispo County, Texas.” (D.E. 22-1, Pages 5-6; D.E. 28, Page 3
and D.E. 29, Page 2). Petitioner states he was “never convicted on this date” and “no
such place exist[s].” (D.E. 28, Page 3).
On September 14, 2015, this Court adopted the M & R, dismissed this action and
entered final judgment, finding Petitioner did not present the newly alleged ground for
relief to the Texas Court of Criminal Appeals during his state habeas proceeding and he
is therefore procedurally barred from raising it in federal court. (D.E. 29, Pages 2-3).
Petitioner did not appeal this final judgment. On November 20, 2015, Petitioner filed the
pending Motion requesting the Court stay the judgment until such time as he exhausts his
state court remedies on this newly raised ground for relief. (D.E. 32, Page 2). Petitioner
alleges he did not present this alleged error to the Texas Court of Criminal Appeals
during his state habeas proceeding because he did not have the records available to him at
the time he filed. (D.E. 32, Page 2).
A petitioner must fully exhaust state remedies before seeking federal habeas relief.
28 U.S.C. § 2254(b). Where a federal petition for writ of habeas corpus contains grounds
for relief that are unexhausted, federal courts have the discretion to either stay and abate
or dismiss the federal action. See Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998).
A dismissal of this action could result in a subsequent habeas petition being barred by the
one-year statute of limitations set forth in 28 U.S.C. § 2244(d). However, 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
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indication that the petitioner engaged in intentionally dilatory litigation tactics. See
Rhines v. Weber, 544 U.S. 269, 277-78 (2005)(stay and abeyance could frustrate
AEDPA’s objectives of encouraging finality and streamlining federal habeas proceedings
so it should be available only in limited circumstances).

Contrary to Petitioner’s

assertion, he has not demonstrated circumstances warranting a stay.
Petitioner did not raise this unexhausted ground for relief in his state habeas
petition, in this federal habeas petition, or in his response to Respondent’s Motion for
Summary Judgment. (D.E. 1 and D.E. 25). Rather, Petitioner raised it for the first time
as an objection to the M & R recommending his action be dismissed. Additionally,
Petitioner did not seek a stay of this case until two months after this action was dismissed
and final judgment was entered. This is indicative of dilatory litigation tactics.
Further, Petitioner has not shown good cause for his failure to exhaust this claim
before he filed his federal petition. As part of his plea agreement, Petitioner signed a
“Judicial Confession and Stipulation” which states:
And it is further presented in and to said Court that, prior to the commission
of the aforesaid offense, on March 28, 1991, in cause number 16650 in the
Superior Court of California of San Luis Obispo County, Texas, I was
convicted of an offense relating to the operating of a motor vehicle while
intoxicated; and on March 28, 1991, in cause number F280636 in the
Superior Court of California of San Luis Obispo County, Texas, I was
convicted of an offense relating to the operating of a motor vehicle while
intoxicated. (D.E. 22-3, Page 11).
Therefore, Petitioner signed a judicial confession admitting to two prior DWI offenses as
listed in the indictment and had knowledge of the alleged errors related to the location
and date of the prior offenses before pleading guilty.
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Moreover, his unexhausted claim is not potentially meritorious. The United States
Court of Appeals for the Fifth Circuit has “consistently demonstrated deference to state
court determinations of state law, including jurisdictional determinations based on state
law.” Evans v. Cain, 577 F.3d 620, 624 (5th Cir. 2009). “This deference is illustrated in
[the Fifth Circuit’s] decisions involving challenges to the sufficiency of a state
indictment.” Id. “The sufficiency of a state indictment is not a matter for federal habeas
relief unless it can be shown that the indictment is so defective that it deprives the state
court of jurisdiction.” McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994)(citation omitted);
Alexander v. McCotter, 775 F.2d 595, 598 (1985)(citation omitted). For an indictment to
be “fatally defective,” “no circumstances can exist under which a valid conviction could
result from facts provable under the indictment.” Morlett v. Lynaugh, 851 F.2d 1521,
1523 (5th Cir. 1988)(citation omitted); see also McKay, 12 F.3d at 69 (“An indictment
should be found sufficient unless no reasonable construction of the indictment would
charge the offense for which the defendant has been convicted.”)(citation omitted).
Therefore, if Petitioner did file a state habeas action raising this argument and the state
habeas court finds the indictment is sufficient, this claim is foreclosed to federal habeas
review. Wood v. Quarterman, 503 F.3d 408, 412 (5th Cir. 2007). Further, even if this
Court were to reach this issue on the merits, there is no evidence that the convicting court
did not have jurisdiction as the indictment charges Petitioner with operating a motor
vehicle in a public place while intoxicated on October 20, 2012, with two prior offenses.
(D.E. 22-1, Pages 5-6); see also Bomer v. Dretke, No. SA-05-CA-0260, 2005 WL
2086033, at *3 (W.D. Tex. Aug. 18, 2005)(Petitioner’s indictment is not “fatally
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defective” if the petitioner was aware he was being charged for the third time with
DWI)(citation omitted).
Moreover, each of Petitioner’s exhausted claims are centered largely on the same
premise: that the enhancement and his resulting sentence were illegal because his two
prior convictions occurred out of state and were more than ten years before the present
crime. (D.E. 1 and D.E. 29). Petitioner does not argue that he did not have two prior
convictions for the same or related offense and, for reasons previously stated, his
sentence was properly enhanced to a third degree felony because of them. (D.E. 26 and
D.E. 29). Therefore, Petitioner has not shown how he was prejudiced because of the
alleged incorrect date and location of his prior offenses in the indictment.
The Court has discretion to grant a stay to allow Petitioner to exhaust state
remedies and avoid the effects of the AEDPA’s statute of limitations but should not
exercise this discretion when the unexhausted claims are “plainly meritless.” Rhine, 544
U.S. at 277-78. The Court has considered Petitioner’s additional ground for relief and
finds it is without merit for purposes of granting the pending Motion to Stay. Therefore,
the Motion is DENIED. (D.E. 32).
ORDERED this 8th day of December, 2015.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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