Burrell v. State of Texas
MEMORANDUM AND OPINION. 25 MOTION/APPLICATION to Proceed In Forma Pauperis, and 9 MOTION/APPLICATION to Proceed In Forma Pauperis are GRANTED. The following motions are DENIED AS MOOT: 36 MOTION for Appointment of Counsel, 33 MOTION for Appointment of Attorney, 7 MOTION for Appointment of Counsel, 37 MOTION for Writ Habeas Corpus. This case is DISMISSED without prejudice. The Certificate of Appealability is DENIED. (Signed by Judge Vanessa D Gilmore) Parties notified.(amwilliams, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
THE ST ATE OF TEXAS,
CIVIL ACTION H-14-2333
MEMORANDUM AND OPINION
Frederick Burrell filed a federal petition for a writ of habeas corpus. The threshold issue is
whether Burrell's federal petition is subject to dismissal for nonexhaustion. The court concludes that
his petition should be dismissed for nonexhaustion.
On-line research reveals that on March 5, 2014, Burrell was arrested for evading arrest
(Cause Number 12-03317-CRF-361), assault of family member (Cause Number 14-00538-CRF361), and theft of property less than $1,500 (Cause Number 12-01528-CRF-361).
Burrell complains that he should have been released on bond within ninety days of his initial
detention because the State was not ready to proceed to trial. Burrell states that his bond was initially
set at $25,000.00, and then it was raised to $154,000.00.
Burrell seeks his immediate release from custody.
Liberally construed, Burrell complains that he has been denied his right to a speedy trial
under the Sixth Amendment to the United States Constitution. See
CONST. amend. VI
(guaranteeing that "the accused shall enjoy the right to a speedy and public trial" in all criminal
prosecutions). The Sixth Amendment right to a speedy trial is applicable to the states pursuant to
the Due Process Clause found in the Fourteenth Amendment. See Klopfner v. North Carolina, 386
U.S. 213, 222 (1967). The Texas Constitution contains a similar speedy trial guarantee. See TEX.
CONST. art. I, § 10; Zamorano v. State, 84 S.W.3d 643,647 n.6 (Tex. Crim. App. 2002) (noting that
Article I, § 10 ofthe Texas Constitution guarantees the accused in all criminal prosecutions the right
to a speedy and public trial). Complaining ofthe eight-month delay in prosecuting his case, Burrell
seeks his immediate discharge from custody.
The court must consider whether Burrell may seek pre-trial habeas relief on his speedy trial
claim. A petitioner may not seek pre-trial habeas relief under 28 U.S.C. § 2254. "[T]hat section
applies only to post-trial situations and affords relief to a petitioner 'in custody pursuant to the
judgment ofa state court.'" Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987) (quoting 28
U.S.C. § 2254(a) and (b)). Pre-trial petitions are cognizable under 28 U.S.C. § 2241, "which applies
to persons in custody regardless of whether final judgment has been rendered and regardless of the
present status of the case pending against him." Dickerson, 816 F.2d at 224; see also Braden v. 30th
Judicial Circuit Court of Ky., 410 U.S. 484 (1973).1 Therefore, Burrell's request for speedy trial
relief is construed as a claim for pre-trial habeas relief pursuant to 28 U.S.C. § 2241(c).
Pre-trial habeas relief is available only to enforce a state's obligation to bring a defendant
promptly to trial, not to adjudicate the merits of a speedy trial claim under the Sixth Amendment and
bar the state from proceeding to triaL Dickerson, 816 F.2d at 224. To be eligible for pre-trial habeas
Section 2241(c) provides in relevant part that "[t]he writ of habeas corpus shall not extend to a
prisoner unless ... (3)[h]e is in custody in violation of the constitution or laws or treaties of the United
relief pursuant to 28 U.S.C. § 2241, a petitioner must be "in custody" and must have exhausted his
available state remedies. Braden, 410 U.S. at 488-89; Dickerson, 816 F .2d at 224. It is only in the
post-trial setting that exhaustion is mandated by statute. Compare 28 U.S.C. § 2254(b), with 28
U.S.C. § 2241(c)(3). Despite the absence of an exhaustion requirement in § 2241(c)(3), a body of
case law has developed holding that federal courts should abstain from the exercise of that
jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state
court or by other state procedures available to the petitioner. See Dickerson, 816 F .2d at 225. See
also Braden, 410 U.S. at 489-92; Brown v. Estelle, 530 F.2d 1280, 1284 (5th Cir. 1976). This
exhaustion doctrine of § 2241 (c )(3) was judicially crafted on federalism grounds to protect the state
courts' opportunity to confront and resolve initially any constitutional issues arising within their
jurisdiction and also to limit federal interference in the state adjudicatory process. See Dickerson,
816 F.3d at 225; Braden, 410 U.S. at 490-91.
Burrell satisfies the "in custody" requirement. At the time of filing this action, he was
incarcerated at the Brazos County Jail. Though Burrell satisfies the "in custody" requirement, the
record reveals that he has not fully exhausted the available state remedies on his speedy trial claim.
The proper procedure for seeking pre-trial relief on speedy trial grounds is to file a petition
for writ of mandamus in the Texas Court of Criminal Appeals. See Chapman v. Evans, 744 S.W.2d
133, 135-138 (Tex. Crim. App. 1988) (conditionally granting mandamus petition seeking to compel
district court to set for trial or dismiss pending indictment for offense unrelated to that for which
petitioner was presently incarcerated); Thomas v. Stevenson, 561 S.W.2d 845, 846-47 (Tex. Crim.
App. 1978) (conditionally granting mandamus petition seeking to compel district court to set case
On August 15, 2014, this court ordered Burrell to complete the attached form for federal
habeas corpus relief under 28 U.S.C. § 2254. Burrell did not comply. Instead, he filed two
handwritten pleadings. (Docket Entry Nos. 11 & 12). Nothing in Burrell's pleadings suggests that
he has filed a state application presenting the speedy trial claim. Nor do his pleadings suggest that
he has pursued a petition for writ of mandamus in the Court of Criminal Appeals. See Brown v.
Estelle, 530 F.2d 1280,1284 (5th Cir. 1976)(requiring exhaustion by petition for writ ofmandamus,
but applying law in effect prior to 1977 amendment to Article V, Section 5 of the Texas
Constitution). The court's online research confirms that Burrell has not filed a petition for a writ of
mandamus in the Texas Court of Criminal Appeals.
Texas has adequate and effective state procedures for obtaining a speedy trial, and in the
absence of proof that the highest state court with criminal law jurisdiction has been given a fair
opportunity to consider Burrell's speedy trial claim, the due administration ofjustice would be better
served by insisting on exhaustion of his state court remedies. Burrell's speedy trial claim is
dismissed for failure to exhaust state remedies.
Burrell's federal petition for a writ of habeas corpus is denied. Burrell's motions to proceed
in forma pauperis, (Docket Entry Nos. 9 & 25), are GRANTED. Burrell's motions for counsel,
(Docket Entry Nos. 7, 33, & 36), are DENIED as moot. All remaining pending motions are denied
as moot. This case is dismissed without prejudice.
On September 8, 2014, Burrell filed a civil rights complaint. (Docket Entry No. 24). In the
interest of judicial economy, the Clerk is directed to file Burrell's civil rights complaint, (Docket
Entry No. 24), as a new civil action and assign it to the under-signed judge.
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The showing necessary for a Certificate of Appealability is a substantial showing of the
denial of a constitutionaI right. Hernandezv. Johnson, 213 F.3d243, 248 (5th Cir. 2000)(citingSlack
v. McDaniel, 529 U.S. 473, 483-84 (2000)). An applicant makes a substantial showing when he
demonstrates that his application involves issues that are debatable among jurists of reason, that
another court could resolve the issues differently, or that the issues deserve encouragement to
proceed further. See Finley v. Johnson, 243 F.3d 2150,218 (5th Cir. 2001).
When, as here, the district court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists 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. Slack, 529 U.S. 484. Burrell has not made the
necessary showing for the issuance of a COA.
SIGNED at Houston, Texas, on
-+-L-?~,--c1-==·:::..-_1--,-_ __ ,
VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE
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