Haley v. Davis
ORDER OF DISMISSAL WITHOUT PREJUDICE due to pendency of the state court action. Any and all pending motions are DENIED AS MOOT. A certificate of appealability is DENIED; Terminating 3 MOTION to Hear Procedurally Defaulted Claim. Case terminated on 12/30/2016(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LARRY DON HALEY,
CIVIL ACTION NO. H-16-1870
ORDER OF DISMISSAL
Petitioner, a state inmate proceeding pro se, filed this section 2254 habeas case
challenging his conviction and fourteen year sentence for family violence assault. Petitioner
claims that his trial counsel was ineffective in failing to investigate his 2005 enhancement
conviction for domestic violence. He contends that, had counsel investigated the facts of that
conviction, she would have discovered that the victim was not a family member, and that the
resulting sentence in his primary case would have been only one year’s imprisonment.
A review of public court records shows that petitioner raised this issue in an
application for state habeas relief, which was dismissed as an abuse of the writ by the Texas
Court of Criminal Appeals on February 24, 2016. Petitioner informed the Court of this prior
proceeding, and requested leave to proceed on the procedurally defaulted claim. However,
further review by this Court shows that petitioner filed a subsequent, undisclosed application
for state habeas relief with the trial court on November 17, 2016, raising this same issue. The
trial court dismissed the petition on December 7, 2016, and ordered the petition to be
transmitted to the Texas Court of Criminal Appeals. To-date, no ruling has been issued by
the Texas Court of Criminal Appeals.
Because petitioner’s application for state habeas relief raising the instant issue remains
pending in the state court, the Court declines at this time to adjudicate petitioner’s federal
habeas petition. This case is DISMISSED WITHOUT PREJUDICE due to pendency of the
state court action. Any and all pending motions are DENIED AS MOOT. A certificate of
appealability is DENIED.
Petitioner is advised that he may move to reopen this case within twenty-eight days
from date of this dismissal, should the Texas Court of Criminal Appeals deny or dismiss his
pending state habeas application within that time. After expiration of twenty-eight days,
petitioner must file a new petition should he intend to pursue his claim in federal court.
Signed at Houston, Texas on December 30, 2016.
Gray H. Miller
United States District Judge
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