Aguilera v. Davis
MEMORANDUM OPINION AND ORDER denying 2 MOTION to Stay, dismissing without prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
August 11, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MARIO EULIEN AGUILERA,
LORIE DAVIS, Director
Texas Department of Criminal
Justice - Correctional
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-2259
MEMORANDUM OPINION AND ORDER
Euliser Aguilera (TDCJ #2058935) has filed a Petition for a Writ of
Habeas Corpus By a Person in State Custody under 28 U.S.C. § 2254
conviction that was entered against him in 2016.
that he has not yet exhausted state court remedies, Aguilera has
also filed a Motion to Stay and Abate [his] Title 28 U.S.C. § 2254
Petition for Writ of Habeas Corpus ("Motion to Stay") (Docket Entry
No. 2). After considering all of the pleadings and the applicable
law, the court will deny the Motion to Stay and dismiss this case
without prejudice for the reasons explained below.
On April 7, 2016, Aguilera was convicted of aggravated robbery
and sentenced to life imprisonment by the 337th District Court of
Harris County, Texas, in cause number 1476026. 1
direct appeal, which remains pending in state court.
appointed counsel has filed a brief under Anders v. California, 386
(an "Anders brief"), certifying that there are no
non-frivolous issues to raise. 2
On November 1, 2016, the court of
appeals granted Aguilera's request for leave to review the record
and file a pro se brief, which he has done. 3
There has been no
decision yet in that appeal. 4
On July 24, 2017, the court received Aguilera's Petition for
habeas corpus relief under 28 U.S.C.
Aguilera on July 20,
2254, which was executed by
The Petition raises one claim for
"ineffective assistance of appellate counsel." 6
Petition, Docket Entry No. 1, p. 2.
See Texas Judicial Branch, Fourteenth Court of Appeals,
located at http://www.search.txcourts.gov (last visited August 10,
Petition, Docket Entry No. 1, p. 10.
Id. at 6.
no facts in support of either claim. 7
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."
22 54 (b) ( 1) (A) .
Thus, a petitioner "must exhaust all available
state remedies before he may obtain federal habeas corpus relief."
Sones v. Hargett,
61 F.3d 410,
(5th Cir. 1995).
corrective process or where circumstances exist that render such
process ineffective to protect the rights of the applicant.
U.S.C. § 2254 (b) (1) (B).
To exhaust his state remedies under the applicable statutory
framework, a habeas petitioner must fairly present "the substance
of his claim to the state courts."
484, 490-91 (5th Cir. 2006)
617, 620 (1986)).
Moore v. Quarterman, 454 F.3d
(quoting Vasquez v. Hillery, 106 S. Ct.
A federal habeas petitioner shall not be deemed
to have exhausted the remedies available in the state courts "if he
has the right under the law of the State to raise, by any available
procedure, the question presented."
a criminal defendant may challenge a conviction in two ways:
the petitioner may file a direct appeal followed, if necessary, by
a petition for discretionary review in the Texas Court of Criminal
he may file a petition for a 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
See TEX. CODE CRIM. PROC. art. 11.07
3(c); see also
petitioners must exhaust state remedies by pursuing their claims
post-conviction collateral proceedings.").
It is evident that Aguilera's direct appeal remains pending
before an intermediate state appellate court and that the Texas
address the issues raised in the pending petition.
avenues of direct appeal and state habeas review remain available,
Aguilera does not satisfy any statutory exception to the exhaustion
Aguilera concedes that he has not yet exhausted available
remedies and he asks the court to stay this case while he does so.
Requests to stay a federal habeas proceeding are governed by the
criteria found in Rhines v. Weber, 125 S. Ct. 1528 (2005).
"mixed" petition, containing both exhausted and unexhausted claims,
only in "limited circumstances."
At a minimum,
petitioner must show good cause for his failure to exhaust.
The petition filed in this case is not mixed;
it is wholly
Moreover, Aguilera does not demonstrate the requisite
good cause for his failure to exhaust state court remedies under
the criteria found in Rhines or show that a stay is warranted under
because Aguilera's conviction is not yet "final" and his time to
2244 (d) (1) (A).
Aguilera should have ample time under the governing statute of
limitations in which to seek habeas relief in federal court in the
event of an unfavorable ruling on his pending state court appeal
and any prospective state court habeas corpus application, which
would further toll the statute of limitations for as long as it is
28 U.S.C. § 2244 (d) (2).
Accordingly, the court will deny
stay and dismiss
prejudice for lack of exhaustion.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
certificate of appealability will not issue unless the petitioner
makes "a substantial showing of the denial of a
right," 28 U.S.C.
a petitioner to
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
controlling standard this
petitioner to show "'that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were "adequate to deserve encouragement to proceed further."'"
1029, 1039 (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
Slack, 120 S. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F.3d 895,
careful review of the pleadings and the applicable law, the court
concludes that reasonable
jurists would not debate whether any
certificate of appealability will not issue.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No. 1) is
DISMISSED without prejudice for lack of exhaustion.
The petitioner's motion to stay this
abeyance (Docket Entry No. 2) is DENIED.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the/H~th day of~~ 2017.
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