Jackson v. Stephens
Filing
10
MEMORANDUM OPINION AND ORDER granting 3 APPLICATION to Proceed In Forma Pauperis, dismissing without prejudice 1 Petition for a Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PERRY JACKSON,
TDCJ NO. 1918186,
§
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Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
CIVIL ACTION NO. H-14-2548
MEMORANDUM OPINION AND ORDER
Petitioner Perry Jackson (TDCJ No. 1918186) is a state inmate
incarcerated in the Texas Department of Criminal Justice pursuant
to a state court judgment.
Jackson has filed a federal Petition
for a Writ of Habeas Corpus By a Person in State Custody under 28
u.S.C.
§
2254
(Docket
Entry No.1)
challenging a
state
court
conviction while a state post-conviction application for a writ of
habeas
pending.
corpus,
challenging
the
same
conviction,
is
currently
For reasons explained more fully below, this case will be
dismissed for failure to exhaust state court remedies.
I.
Procedural History
Jackson is serving a thee-year prison sentence pursuant to a
state court conviction for failure to comply with sex offender
reporting requirements.
State v. Jackson, No. 1351485 (178th Dist.
Ct.,
Harris County,
Tex.,
March 14,
He states that he
2014).
entered a guilty plea to the trial court and did not file a notice
of appeal.
(Docket Entry No.1,
p.
3)
Jackson states that he
filed a state application for a writ of habeas corpus pursuant to
Article 11.07 of the Texas Code of Criminal Procedure on June 13,
2014, and it was denied by the Texas Court of Criminal Appeals on
August 20, 2014.
rd. at 4.
He states that he filed a second state
habeas application and that it is still pending.
II.
rd. at 4.
Analysis
The court verified with the Harris County District Clerk's
Office
that
conviction.
no
direct
appeal
was
filed
challenging
Jackson's
See Harris County District Clerk Website http://www.
hcdistrictclerk.com.
The Texas Court of Appeals records reflect
that a state application for a writ of habeas corpus was filed with
the district court and was denied by the Texas Court of Criminal
Appeals
on August
20,
2014.
See
Website
for
Texas
Court
of
Criminal Appeals: http://www.cca.courts.state.tx.us/. Harris County
District
Clerk's
records
reflect
that
a
second
state
habeas
application was filed on August 11, 2014, and was forwarded to the
Court of Criminal Appeals on October 1,
2014.
See Website for
Harris County Clerk's Office.
Under 28 U.S.C.
available
courts.
state
§
2254(b)
a habeas petitioner must exhaust
remedies before
See Nobles v. Johnson,
seeking relief
127 F.3d 409,
-2 -
in the
419-420
federal
(5th Cir.
See also Wion v. Quarterman, 567 F.3d 146, 148 (5th Cir.
1997)
2009)
("Before pursuing federal
habeas relief,
a petitioner is
required to exhaust all state procedures for relief.)
v. Cain, 228 F.3d 616,
619-20
(5th Cir. 2000)).
(citing Orman
To exhaust his
state remedies the petitioner must fairly present the substance of
his claims to the state courts,
and the claims must have been
fairly presented to the highest court of the state.
420, citing Picard v. Connor, 92 S. Ct. 509, 512-13
v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990).
requirement
is
based
on
the
precept
Thompson, 111 S. Ct. 2546, 2555 (1991).
of
Nobles,
(1971)
i
at
Myers
This exhaustion
comity.
Coleman
v.
Federal courts follow this
principle to afford the state courts the first opportunity "to
address and correct alleged violations of state prisoner's federal
rights."
his
Id.
state
Therefore, a habeas petitioner must pursue all of
court
remedies
before
claims in a federal petition.
presenting
See Rhines v.
his
constitutional
Weber,
128 S. Ct.
1528, 1533 (2005).
This court should not adjudicate a federal writ application
while habeas claims are under review by the state courts.
Deters v.
Collins,
985 F.2d 789,
797
(5th Cir.
1993)
See
("Because
Deters' state appeal is still pending, we would have to ignore the
doctrine of federal-state comity by disrupting that ongoing state
process. ")
Cir.
1972)
i
see also Williams v. Bailey,
463 F. 2d 247,
248
(5th
("federal disruption of the state judicial appellate
-3-
process would be an unseemly and uncalled for interference that
comity between our dual system forbids").
the
state
courts
circumvent
the
issue
state
a
decision.
system and
He
Jackson must wait until
cannot
seek relief
be
in
allowed
federal
to
court
without allowing the state courts an opportunity to rule on his
claims.
See Graham v. Collins, 94 F.3d 958, 969 (5th Cir. 1996);
Deters, 985 F.2d at 792-794.
560, 561
(5th Cir. 1972).
See also Bryant v. Bailey, 464 F.2d
If a federal habeas petition is filed
while state remedies ,are still being pursued, the federal court has
the authority to dismiss the federal petition.
139 F.3d 491, 493 (5th Cir. 1998).
Brewer v. Johnson,
Moreover, if a habeas petition
contains both exhausted and unexhausted claims,
it is a "mixed"
petition, which should be dismissed without prejudice.
v.
Johnson,
163 F.3d 906,
908
(5th Cir.
1998),
Alexander
citing Rose v.
Lundy, 102 S. Ct. 1198 (1982).
Accordingly, this action will be dismissed without prejudice
for failure of the petitioner to exhaust all available remedies on
all
his
claims
to
the
state's
highest
court
of
jurisdiction as required by the provisions of 28 U.S.C.
criminal
§
2254.
Should Jackson file a notice of appeal, the court denies the
issuance of a Certificate of Appealability for the reasons stated
in this Memorandum Opinion and Order.
28 U.S.C.
§
2253; Whitehead
v. Johnson, 157 F.3d 384, 386 (5th Cir. 199$); Murphy v. Johnson,
110 F.3d 10, 11 (5th Cir. 1997).
-4 -
i
:
III.
Conclusion
1.
The Petition for a Writ of Habeas Corp\.1s By a
Person in State Custody (Docket Entry No.1) is
DISMISSED WITHOUT
PREJUDICE
for
petitioner's
failure to exhaust state court remedies.
2.
A Certificate of Appealability is DENIED.
3.
The Application to Proceed In
(Docket Entry No.3) is GRANTED.
4.
The Clerk will provide a copy of this Memorandum
Opinion and Order to the petitioner and will
provide a copy of the Petition and this Memorandum
to the respondent and the attorney general by
providing one copy to the Attorney General of the
State of Texas.
Forma
Pauperis
SIGNED at Houston, Texas, on this 6th day of October, 2014.
UNITED STATES DISTRICT JUDGE
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