Lewis v. Davis

Filing 10

MEMORANDUM AND ORDER granting 7 MOTION for Summary Judgment with Brief in Support. Lewis's petition is DISMISSED WITHOUT PREJUDICE as a mixed petition. A Certificate of Appealability is DENIED. (Signed by Judge Alfred H Bennett) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

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

MARCUS JAMEZ LEWIS,
Petitioner,
V.

LORIE DAVIS,
Respondent.

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ENTERED
October 12, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-cv-1691

MEMORANDUM AND ORDER

The petitioner, Marcus Jamez Lewis (TDCJ #01955358), has filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254.

He challenges his 2014 state court

conviction for possession of a controlled substance.

Respondent Lorie Davis has

answered with a motion for summary judgment, arguing the petition should be dismissed
without prejudice as a mixed petition. (Docket Entry No. 7). Lewis has responded.
(Docket Entry No. 9).

After considering all of the pleadings, the records, and the

applicable law, the Court grants the respondent's motion for summary judgment and
dismisses the case for the reasons that follow.
I.

Background and Claims

Lewis is presently in custody of the Texas Department of Criminal Justice Correctional Institutions Division (TDCJ) as the result of a felony conviction in Harris
County Cause Number 1398109. A grand jury returned an indictment against Lewis for
possession of a controlled substance, namely, cocaine, in an amount greater than one
gram but less than four grams.

The indictment further contained two enhancement

paragraphs alleging prior felony convictions. Following a trial, a jury found Lewis guilty

as charged in the indictment. On September 24, 2014, after finding both enhancement
paragraphs to be true, the trial court sentenced Lewis to forty- five (45) years'
imprisonment.
On direct appeal, Lewis raised five points of error: ( 1) the trial court improperly
denied his request for self-representation; (2) the trial court failed to conduct a
competency inquiry; (3) trial counsel rendered ineffective assistance when he failed to
file a motion to suppress; (4) the trial court erred in denying his motion for a new trial;
and (5) the trial court erred in denying his request for a jury instruction. On January 7,
2016, the Fourteenth Court of Appeals of Texas affirmed Lewis's conviction. Lewis v.
State, No. 14-14-00779-CR, 2016 WL 93760 (Tex. App.-Houston [14th Dist.] 2016,

pet. ref' d) (mem. op.).
Subsequently, Lewis petitioned the Texas Court of Criminal Appeals for
discretionary review. Lewis argued the appellate court erred only with regard to his
claim that the trial court denied him the right to self-representation. On May 4, 2016, the
Court of Criminal Appeals refused Lewis's petition. Lewis v. State, No. PD-0117-16
(Tex. Crim. App. 2016).
On August 8, 2016, Lewis filed an application for a state writ of habeas corpus
under Article 11.07 of the Texas Code of Criminal Procedure, asserting trial court error
and ineffective assistance of counsel as grounds for relief. (Docket Entry No. 1, at 4).
On August 25, 2016, the trial court ordered trial counsel, Ted R. Doebbler, to file an
affidavit in response to Lewis's ineffective-assistance-of-counsel claims.

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To date,

Lewis's application remains pending in the 182nd District Court of Harris County, Texas,
and has not been forwarded to the Court of Criminal Appeals for resolution. 1
On June 5, 2017, this Court received Lewis's federal petition, in which he raises
the following grounds for federal habeas relief:
1. The trial court denied him the right to self-representation.
2. He received ineffective assistance of trial counsel because:
a. he had an actual conflict of interest with counsel;
b. counsel failed to investigate;
c. counsel failed to interview witnesses;
d. counsel failed to file a pretrial motion to suppress and conduct
discovery; and
e. counsel failed to object to an improper enhancement at sentencing.
(Docket Entry No. 1, at 6-8). The respondent argues the petition should be dismissed
without prejudice as a mixed petition.

II.

The Issue of Exhaustion
The threshold issue is whether Lewis has exhausted his state court remedies as

required for this case to proceed.

Under 28 U.S.C. § 2254(b)(l) and (c), a habeas

petitioner must exhaust available state remedies before seeking relief in the federal
courts. See Nobles v. Johnson, 127 F.3d 409, 419--420 (5th Cir. 1997); see also Wion v.
Quarterman, 567 F.3d 146, 148 (5th Cir. 2009) ("Before pursuing federal habeas relief, a

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Relying on an affidavit from the Clerk of the Court of Criminal Appeals, the respondent asserts
Lewis has not filed an application for state writ of habeas corpus. (Docket Entry No. 7, at 3, 6;
Docket Entry No. 7-1). However, this Court verified with the Harris County District Clerk's
Office that Lewis has filed a state writ application in the convicting court. See generally, Harris
County District Clerk Website, http://www.hcdistrictclerk.com.
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petitioner is required to exhaust all state procedures for relief.") (citing Orman v. Cain,
228 F.3d 616, 619-20 (5th Cir. 2000)). 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. Nobles, 127 F.3d at 420 (citing
Picard v. Connor, 404 U.S. 270, 275-76 (1971)); Myers v. Collins, 919 F.2d 1074, 1076
(5th Cir. 1990). This exhaustion requirement is based on the precept of comity. Coleman
v. Thompson, 501 U.S. 722, 731 (1991). 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." /d. Therefore, a habeas petitioner must pursue all of his state
court remedies before presenting his constitutional claims in a federal petition.

See

Rhines v. Weber, 544 U.S. 269, 274 (2005). 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)(l)(B).
This Court should not adjudicate a federal writ application while habeas claims
remain under review by the state courts. See Deters v. Collins, 985 F.2d 789, 797 (5th
Cir. 1993) ("Because Deters' state appeal is still pending, we would have to ignore the
doctrine of federal-state comity by disrupting that ongoing state process."); see also
Williams v. Bailey, 463 F.2d 247, 248 (5th Cir. 1972) ("[F]ederal disruption of the state
judicial appellate process would be an unseemly and uncalled for interference that comity
between our dual system forbids.").

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. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). Moreover, if a habeas
petition contains both exhausted and unexhausted claims, it is a "mixed" petition, which
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should be dismissed without prejudice. Alexander v. Johnson, 163 F.3d 906, 908 (5th
Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 510 (1982)).
Lewis's petition contains both exhausted and unexhausted claims.

He has

properly exhausted only his first ground for relief-that the trial court denied him the
right to self-representation-by raising it on direct appeal and in his petition for
discretionary review. Because Lewis's state writ application is still pending in the trial
court, he has not presented his remaining ineffective-assistance-of-counsel claims to the
Texas Court of Criminal Appeals. Consequently, these claims are unexhausted.
Because state process remains available, Lewis does not satisfy any statutory
exception to the exhaustion doctrine.

Lewis's federal petition is dismissed without

prejudice for failure to exhaust all claims, as required by the provisions of 28 U.S.C. §
2254. Lewis may refile a federal habeas petition after exhausting his state remedies,
subject to the time requirements under 28 U.S.C. § 2244(d).

III.

Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases now requires a district court

to issue or deny a certificate of appealability when entering a final order that is adverse to
the petitioner. A certificate of appealability will not issue unless the petitioner makes "a
substantial showing ofthe denial of a constitutional right," 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate "that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong." Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the
controlling standard, this requires a petitioner to show "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
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different manner or that the issues presented were 'adequate to deserve encouragement to
proceed further."' Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Where denial of
relief is based on procedural grounds, the petitioner must show not only that "jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right," but also that they "would find it debatable whether the district court
was correct in its procedural ruling." Slack, 529 U.S. at 484.
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.
IV.

Conclusion

For these reasons, the Court ORDERS as follows:
1. The respondent's motion for summary judgment, (Docket Entry No. 7), is
GRANTED.

2. Lewis's petition ts DISMISSED WITHOUT PREJUDICE as a mixed
petition.
3. A certificate of appealability is DENIED.

ALFRED H. B
UNITED STATES DIST

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