Glasper v. Davis

Filing 5

ORDER OF DISMISSAL DENYING 2 MOTION to waive exhaustion. This federal habeas petition is DISMISSED WITHOUT PREJUDICE for failure to exhaust. A certificate of appealability is DENIED. Any and all pending motions are DENIED AS MOOT.Case terminated on 2/15/2018 (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DELANO JOSEPH GLASPER,
Petitioner,
v.
LORIE DAVIS,
Respondent.

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February 15, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-0416

ORDER OF DISMISSAL
Petitioner, a state inmate proceeding pro se, filed a section 2254 habeas petition
challenging the execution of his sentence. He also filed a motion to waive exhaustion
(Docket Entry No. 2). After reviewing the pleadings and matters of public record under
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the
Court DENIES the motion to waive exhaustion and DISMISSES this lawsuit for failure to
exhaust, as follows.
Petitioner reports that he was released to parole in 2012 and subsequently convicted
of possession of a controlled substance in 2015. Following his revocation of parole and
return to prison, he was denied certain pre-revocation jail time credit pursuant to state law.
Petitioner disagreed with that decision, and filed an administrative time credit dispute
resolution form.

The dispute resolution form was denied.

Petitioner then filed an

application for state habeas relief in April 2017, which remains pending in the state trial
court.

Petitioner complains in the instant federal habeas petition that the state trial court
is delaying resolution of his state habeas proceeding. He asks that this Court waive
exhaustion and allow him to prosecute his federal petition.
A petitioner must fully exhaust state remedies before seeking federal habeas relief.
28 U.S.C. § 2254(b). To exhaust in accordance with section 2254, a petitioner must fairly
present the factual and legal basis of any claim to the highest available state court for
review prior to raising it in federal court. See Deters v. Collins, 985 F.2d 789, 795 (5th
Cir. 1993). The exhaustion requirement is satisfied when the substance of the federal
claim is fairly presented to the Texas Court of Criminal Appeals on direct appeal or in
state post-conviction proceedings. Fisher v. State of Texas, 169 F.3d 295, 302 (5th Cir.
1999). Exceptions exist only where there is an absence of available state corrective
process or circumstances exist that render the available process ineffective. See 28 U.S.C.
§ 2254(b)(1)(B).
A review of public state court records shows that petitioner’s application for state
habeas relief is active and currently progressing in the trial court. Ex parte Glasper, Cause
No. 1103790-A in the 262nd Judicial District Court of Harris County, Texas. The State
filed proposed findings of fact and conclusions of law on January 11, 2018, which are
currently pending before the trial court. Petitioner’s habeas claims involve application of
state law, and the state courts should be allowed to determine the issues prior to this
Court’s review. Petitioner does not show an absence of available state corrective process
or the existence of circumstances rendering the available process ineffective at this time.

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Petitioner’s motion to waive exhaustion (Docket Entry No. 2) is DENIED, and this
federal habeas petition is DISMISSED WITHOUT PREJUDICE for failure to exhaust.
A certificate of appealability is DENIED. Any and all pending motions are DENIED AS
MOOT.
Signed at Houston, Texas on February 15, 2018.

Gray H. Miller
United States District Judge

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