Griggs v. Thaler

Filing 4

ORDER OF DISMISSAL DENYING habeas relief and DISMISSING case with prejudice. Any and all pending motions DENIED AS MOOT. Certificate of appealability DENIED. Case terminated on 9/10/2009.(Signed by Judge Gray H. Miller) Parties notified.(gseidl)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION J EFF WAYNE GRIGGS, P e titio n e r , v. N ATHANIEL QUARTERMAN, R e s p o n d e n t. § § § § § § § § §

C IVIL ACTION NO. H-09-2790

ORDER OF DISMISSAL
Jeff Wayne Griggs, a state inmate proceeding pro se, files this section 2254 habeas c a se complaining of the state trial court's delay in finalizing his state habeas proceeding. A f ter reviewing the pleadings under Rule 4 of the Rules Governing Section 2254 Cases in th e United States District Courts, the Court concludes that this case must be dismissed. Background and Claims P e titio n e r reports that, on April 9, 2009, he filed an application for state habeas relief w ith the 184th District Court of Harris County, Texas. On May 20, 2009, the trial court o rd e re d the Office of the General Counsel for the Texas Department of Criminal Justice to f ile an affidavit regarding designated issues. The affidavit was timely filed on June 12, 2009. P e titio n e r complains that the trial court has not ruled on his application or forwarded it to the T e x a s Court of Criminal Appeals. He argues that this two-month "delay" in finalizing or f o rw a rd in g his habeas application violates state procedural law and his constitutional rights u n d er the Fifth and Fourteenth Amendments. (Docket Entry No. 2, p. 1.)

A n a lys is P e titio n e r does not challenge his underlying conviction. He argues instead that, b e c au s e he is entitled to an immediate release from prison, the state court's violations of the T e x a s Code of Criminal Procedure and ensuing procedural delay in finalizing his habeas a p p lic a tio n are denying him due process. Federal habeas review is available for vindication only of rights existing under federal la w , Martinez v. Johnson, 255 F.3d 229, 246 (5th Cir. 2001), not of rights existing solely u n d e r state procedural rules. Manning v. Warden, Louisiana State Penitentiary, 786 F.2d 7 1 0 , 711 (5th Cir. 1986). A violation of a state procedural rule does not, standing alone, c o n stitu te a ground for federal habeas relief. Petitioner's claim independently based on v io la tio n of state procedural law fails to raise a cognizable federal habeas claim. Further, that the state court has not ruled on petitioner's pending application within tw o months does not raise an issue of federal constitutional dimension. There is no federal c o n stitu tio n a l right to a state habeas proceeding, and petitioner's claim is not cognizable on f e d e r a l habeas review. Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001); Nichols v. S c o tt, 69 F.3d 1255, 1275 (5th Cir. 1995). Nor are alleged errors occurring during a state h a b e as proceeding cognizable on federal habeas review, as "infirmities in state habeas corpus p ro c e ed in g s do not constitute grounds for relief in federal court." Henderson v. Cockrell, 3 3 3 F.3d 592, 606 (5th Cir. 2003). Even assuming there were such a constitutional right, the p u rp o rte d two-month delay is not of such significance as to deny due process in this case.

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A lth o u g h petitioner has not requested this Court to excuse his failure to exhaust state c o u rt remedies, to any extent the petition may be construed as requesting such relief, the r e q u e s t is denied. Although an inordinate and unjustified delay in the state review process m a y excuse the federal exhaustion requirement, the delay must be solely attributable to in a d e q u a te state procedures and impinge on the petitioner's due process rights. Deters v. C o llin s , 985 F.2d 789, 795-96 (5th Cir. 1993). The current purported two-month gap b e tw e e n the filing of the affidavit and the trial court's disposition of the habeas proceeding is not so inordinate a delay as to warrant excusing petitioner's non-exhaustion at this time. C o n c lu s io n F o r these reasons, habeas relief is DENIED and this petition is DISMISSED WITH P R E J U D IC E . Any and all pending motions are DENIED AS MOOT. A certificate of a p p e a la b ility is DENIED. T h e Clerk will provide a copy of this order to the parties. S ig n e d at Houston, Texas, on September 10, 2009.

Gray H. Miller U n ite d States District Judge

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