Hunt v. Livingston

Filing 7

MEMORANDUM AND ORDER DISMISSING CASE WITHOUT PREJUDICE, Granting 4 MOTION/APPLICATION to Proceed In Forma Pauperis, Denying 5 MOTION for Leave to File His Petition as Required by 28 USC 2244 (b)(3) & (4). The Certificate of Appealability is DENIED. (Signed by Judge Nancy F. Atlas) Parties notified.(gkelner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ROY ANTHONY HUNT,
TDCJ #619439,

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Petitioner,
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v.
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RICK THALER, Director,
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Texas Department of Criminal Justice - §
Correctional Institutions Division,
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Respondent.

CIVIL ACTION NO. H-13-1445

MEMORANDUM AND ORDER
Before the court is a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, filed Roy Anthony Hunt (TDCJ #619439), a state inmate incarcerated in the
Texas Department of Criminal Justice - Correctional Institutions Division
(collectively, “TDCJ”). Hunt has filed a petition, seeking relief from a TDCJ
administrative decision regarding the time he must serve before being eligible for
early release. After reviewing the pleadings and the applicable law under Rule 4 of
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The petition names Brad Livingston as the respondent. Livingston is the
Executive Director of the Texas Department of Criminal Justice. Rick Thaler
is the director of the Correctional Institutions Division. The Court substitutes
Thaler, as the proper respondent pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure because he is the official custodian of the Texas prison inmates.
See Ladner v. Smith, 941 F.2d 356, 356 n.1 (5th Cir. 1991).

the Rules Governing Section 2254 Cases in the United States District Courts,
however, the Court concludes that this case must be dismissed for reasons set forth
briefly below.
I.

BACKGROUND
Hunt reports that he was convicted and sentenced to twenty years in TDCJ

pursuant to a plea of nolo contendere for the offense of delivery of a controlled
substance. State v. Hunt, No. 606087 (248th Dist. Ct., Harris County, Tex. Jan. 13,
1991). He appealed the judgment which was affirmed by the Court of Appeals for the
First District of Texas. Hunt v. State, No. 01-92-00038-CR, 1992 WL 347937 (Tex.
App.– Hous. [1st Dist.] Nov. 25, 1992). Hunt states that he subsequently pled guilty
to aggravated assault and was sentenced to five years in TDCJ, to be served
consecutively with the sentence for the prior delivery of a controlled substance
conviction. State v. Hunt, 59,883 (23rd Dist. Ct., Brazoria County, Tex. Dec. 10,
2012).
Hunt claims that the 23rd State District Court in Brazoria County dropped the
deadly weapon finding pursuant to a plea agreement making the offense nonaggravated for purposes of eligibility for mandatory supervision [Doc. # 1, p. 7]. He
has also attached a copy of the state court judgment in which the section marked
“Findings on Deadly Weapon” is marked “N/A” [Doc. # 3, p. 11]. Hunt contends that
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he has been eligible for mandatory supervision since May 9, 2012, but that the TDCJ
administration has denied him an early release by applying the wrong statute in
determining his eligibility [Doc. # 3, p. 7].
Hunt filed two state applications for a writ of habeas corpus challenging the
TDCJ administrative denial of early release. Both applications were denied for failure
to comply with Section 501.0081(b) of the Texas Government Code. Ex parte Hunt,
No. 38,691-09 (Tex. Crim. App. Apr. 17, 2013); Ex parte Hunt, No. 38,691-10 (Tex.
Crim. App. Apr. 17, 2013). Under that provision, a prisoner cannot file a state
application for a writ of habeas corpus regarding time credit until he has filed a
challenge with the TDCJ administrative appeal system and has obtained a written
decision regarding his claim or 180 days has elapsed without a decision since he filed
his administrative challenge. TEX. GOV’T CODE Ann. § 501.0081(b) (West 2012).
Hunt has filed at least fifteen civil rights complaints and habeas petitions prior
to submitting the current habeas challenge. See Hunt v. State of Texas, Civil No. H10-2569 (S.D. Tex. Jul. 24, 2010), see Memorandum on Dismissal, (Doc. # 4, p. 2).
In doing so, he has accumulated more than three strikes and is barred from filing any
civil rights complaint in forma pauperis unless he is in imminent danger of serious
physical injury. Id., citing 28 U.S.C. § 1915(g). Hunt has also been cited and
sanctioned for his “abusive and scurrilous filings in federal court.” Id. at 2.
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Consequently, the court has twice barred Hunt from filing any new civil rights
complaints or habeas applications without advance payment of the filing fee and
written permission from the court. H-10-2569, citing Hunt v. Harris County, Civil
No. H-98-1396 (S. D. Tex. May 2, 2000); Hunt v. Thomas, Civil No. H-98-1976 (S.D.
Tex. Aug. 6, 1999). A previous habeas application filed by Hunt challenging the
outcome of a prison disciplinary hearing was dismissed for failure to obtain
permission. Hunt v. Dretke, Civil No. H-04-1316 (S.D. Tex. Apr. 12, 2004).
II.

FAILURE TO EXHAUST STATE REMEDIES
Under the applicable federal habeas corpus statutes, “[a]n 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 . . . the applicant has exhausted the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

A

petitioner must exhaust the available requisite state procedures for relief before
pursuing federal habeas relief. Wion v. Quarterman, 567 F.3d 146, 148 (5th Cir.
2009) (citing Orman v. Cain, 228 F.3d 616, 619-20 (5th Cir.2000). Sones v. Hargett,
61 F.3d 410, 414 (5th Cir. 1995). The exhaustion requirement “is not jurisdictional,
but reflects a policy of federal-state comity designed to give the State an initial
opportunity to pass upon and correct alleged violations of its prisoners’ federal
rights.” Moore v. Quarterman, 454 F.3d 484, 490-91 (5th Cir. 2006) (quoting
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Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (internal citations and
quotations omitted)). Exceptions exist only where there is an absence of available
State corrective process or circumstances exist that render such process ineffective to
protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1)(B). A reviewing court
may raise a petitioner’s failure to exhaust sua sponte. Woodfox v. Cain, 609 F.3d 704,
792 (5th Cir. 2010) (citing Tigner v. Cockrell, 264 F.3d 521, 526 n.3 (5th Cir. 2001)).
In most cases under the applicable statutory framework, a habeas petitioner
must exhaust his state remedies by fairly presenting “the substance of his claim to the
state courts.” Moore, 454 F.3d at 491 (quoting Vasquez v. Hillery, 474 U.S. 254, 258
(1986)). A federal habeas petitioner shall not be deemed to have exhausted the state
remedies “if he has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(b)(1)(C). Texas prisoners
challenging their state court judgments do so by taking the following paths: (1) filing
a direct appeal followed, if necessary, by a petition for discretionary review in the
Texas Court of Criminal Appeals; or (2) filing an application for writ of habeas corpus
under Article 11.07 of the Texas Code of Criminal Procedure in the convicting court,
which is transmitted to the Texas Court of Criminal Appeals once the trial court
determines whether findings are necessary. See TEX. CODE CRIM. PROC. art. 11.07 §
3(c); see also Busby v. Dretke, 359 F.3d 708, 723 (5th Cir. 2004) (“Habeas petitioners
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must exhaust state remedies by pursuing their claims through one complete cycle of
either state direct appeal or post-conviction collateral proceedings.”); Myers v. Collins,
919 F.2d 1074, 1076 (5th Cir. 1990).
In this proceeding, Hunt is not challenging a state court judgment. Instead, he
challenges a prison administrative decision regarding his good-time credits and their
effect on his release date. He may not file a direct appeal for relief in the Texas
courts. See Ex parte Dunlap, 166 S.W.3d 268 (Tex. Crim. App. 2005); Jackson v.
Johnson, 69 S.W.3d 372, 373 (Tex. App.– Texarkana 2002); Ex parte Brager, 704
S.W.2d 46 (Tex. Crim. App. 1986). Instead, he must first resort to the TDCJ
grievance system. Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004) (citing
Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.2001). Texas law requires him
to file an administrative appeal and wait until a written decision is issued or let 180
days elapse before filing a state habeas application. Stone v. Thaler, 614 F.3d 136,
138 (5th Cir. 2010). He may then file a state writ application and exhaust his state
remedies in compliance with § 2254 after the Texas Court of Criminal Appeals issues
an adjudication on the merits. Id.; Walters v. Quarterman, 258 F. App’x 697, 698 (5th
Cir. 2007) (citing Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).
The state court records indicate that Hunt did not follow the requisite
procedures before filing his state writ of habeas corpus application. Nos. 38,691-09,
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-10. Although he did submit his claim in a state habeas application, it was not
presented “‘in a procedurally correct manner.’” See Beazley v. Johnson, 242 F.3d
248, 263 (5th Cir. 2001) (quoting Deters v. Collins, 985 F.2d 789, 795 (5th Cir.
1993)).

Accordingly, the Texas Court of Criminal Appeals “dismissed” the

application on procedural grounds indicating that there was no ruling on the merits.
Miller, 200 F.3d at 698 (citing Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.
App. 1997). Consequently, the substance of his claim was not fairly presented to the
state courts which precludes review in the federal courts. See Martinez v. Ryan, 132
S.Ct. 1309, 1316 (2012); Carty v. Thaler, 583 F.3d 244, 253 -254 (5th Cir. 2009).
The court generally gives a habeas petitioner an opportunity to respond to a finding
that his petition is subject to dismissal for failure to exhaust. Kurtzemann v.
Quarterman, 306 F. App’x 205, 206 (5th Cir. 2009) (citing Day v McDonough, 547
U.S. 198, 209-10 (2006); Magouirk v. Phillips, 144 F.3d 348, 357-59 (5th Cir.1998)).
However, Hunt’s litigation history, when viewed in concert with his attempt to
circumvent prison administrative procedures, obviates the need for prior notice before
dismissal. Magouirk, 144 F.3d at 358.
III.

PRIOR SANCTIONS
As stated in the first section of this Memorandum and Order, Hunt has been

barred from filing new habeas petitions and civil rights complaints without prior court
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authorization due to his purposeless and vexatious pleadings as well as his history of
failing to respond to court rulings. See e.g. Hunt v. Thomas, Civil No. H-98-1976.
Such sanctions are appropriate against pro se litigants who have ignored court orders
and have persisted with baseless petitions and complaints. See Bryson v. United
States, 553 F.3d 402 (5th Cir. 2008) (dismissal with prejudice of habeas petition
warranted in light of petitioner’s contumacious conduct); Mayfield v. Klevenhagen,
941 F.2d 346, 348 (5th Cir. 1991) (noting that a plaintiff’s “wasting of increasingly
scarce judicial resources must be brought to an end”). Hunt has failed to exhaust
available state court remedies and has shown a continuing disregard for court rulings
and procedures. Consequently, his petition is subject to dismissal without further
notice. See In re McDonald, 489 U.S. 180 (1989) (inmate who had only $25 was not
allowed to proceed in forma pauperis before the Supreme Court due to his history of
filing writs); Moody v. Baker, 857 F.2d 256, 258 (5th Cir. 1988); Gabel v. Lynaugh,
835 F.2d 124, 125 (5th Cir. 1988).
IV.

CERTIFICATE OF APPEALABILITY
Because the habeas corpus petition filed in this case is governed by the

Antiterrorism and Effective Death Penalty Act (the “AEDPA”), codified as amended
at 28 U.S.C. § 2253, a certificate of appealability is required before an appeal may
proceed. See Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) (noting that
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actions filed under either 28 U.S.C. § 2254 or § 2255 require a certificate of
appealability). “This is a jurisdictional prerequisite because the COA statute mandates
that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals . . . .’” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (citing 28 U.S.C. § 2253(c)(1)).
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898
(5th Cir. 2000). Because the exhaustion prerequisite to federal habeas corpus review
is well established, the Court concludes that jurists of reason would not debate
whether the procedural ruling in this case was correct. Accordingly, a certificate of
appealability will not issue in this case.
V.

CONCLUSION
For these reasons, the Court ORDERS as follows:
1.

The petitioner’s motion for leave to proceed in forma pauperis [Doc.
# 4] is GRANTED.

2.

The petitioner’s motion for leave to file petition [Doc. # 5] is DENIED
and the petition [Doc. #1] is DISMISSED WITHOUT PREJUDICE
for failure of the petitioner to exhaust all available remedies on all his
claims to the state’s highest court of criminal jurisdiction as required by
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28 U.S.C. § 2254.
3.

A certificate of appealability is DENIED.

The Clerk will provide copies of this order to the parties.
SIGNED at Houston, Texas, on

May 31

, 2013.

NANCY F. ATLAS
UNITED STATES DISTRICT JUDGE

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