Velez v. Kennedy
ORDER ADOPTING Magistrate's 4 Report and Recommendations. IT IS ORDERED that Velez's [#1] Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE;IT IS FINALLY ORDERED that a certificate of appealability is DENIED. Signed by Judge Sam Sparks. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
Case No. A-14-CA-133-SS
BRANDA P. KENNEDY,
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Petitioner George Velez's Petition for Writ of Habeas Corpus [#1], the Report and
Recommendation of the United States Magistrate Judge [#4], and Petitioner George Velez's
Objections [#12]. Having reviewed the documents, the relevant law, and the file as a whole, the
Court now enters the following opinion and orders.
All matters in this case were referred to United States Magistrate Judge Andrew W. Austin
for report and recommendation pursuant to 28 U.S.C.
636(b) and Rule 1(e) of Appendix C of the
Local Court Rules of the United States District Court for the Western District of Texas, Local Rules
for the Assignment of Duties to United States Magistrate Judges. Velez is entitled to de novo review
of the portions of the Magistrate Judge's report to which he filed specific objections. 28 U.S.C.
636(b)(1). All other review is for plain error.
United Servs. Auto. Ass'n,
1415, 1428-29 (5th Cir. 1996) (en banc). Nevertheless, this Court has reviewed the entire file de
novo, and agrees with the Magistrate Judge's recommendation.
Although Velez's petition is difficult to read, he appears to have been convicted of robbery
and burglary in January 2014. Velez has not yet had the opportunity to appeal his recent convictions
or challenge them in state applications for writ of habeas corpus.
A fundamental prerequisite to federal habeas corpus relief under 28 U.S.C.
2254 is the
exhaustion of all claims in state court prior to requesting federal collateral relief. Sterling
57 F.3d 451, 453 (5th Cir. 1995). Section 2254(b) provides that:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to thejudgment of a State court shall not be granted unless it appears
the applicant has exhausted the remedies available in the courts ofthe
there is an absence of available State corrective process; or
circumstances exist that render such process ineffective to
protect the rights of the applicant.
2254(b)(1). This requirement is designed in the interests of comity and federalism to
give state courts the initial opportunity to pass upon and correct errors of federal law in a state
conviction. Picard v. Connor, 404 U.S. 270, 275-76 (1971). The purpose and policy underlying
the exhaustion doctrine is to preserve the role of the state courts in the application and enforcement
of federal law and prevent disruption of state criminal proceedings. Rose
518 (1982) (citing Braden
Lundy, 455 U.S. 509,
30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 490-91 (1973)).
A petition under 28 U.S.C. § 2254 "must be dismissed
exhausted as to any of the federal claims." Castille
if state remedies have not been
Peoples, 489 U.S. 346, 349 (1989). The
exhaustion doctrine "requires that the Texas Court of criminal Appeals be given an opportunity to
review and rule upon the petitioner's claim before he resorts to the federal courts." Richardson
Procunier, 762 F.2d 429, 431(5th Cir. 1985). Once a federal claim has been fairly presented to the
Texas Court of Criminal Appeals, either through direct appeal or collateral attack, the exhaustion
requirement is satisfied. See Castille, 489 U.S. at 351. In order to avoid piecemeal litigation, all
grounds raised in a federal petition for writ of habeas corpus must first be presented
to the state's highest criminal court prior to being presented in federal court. Rose, 455 U.S. at 522.
If even one claim is unexhausted, the entire petition must be dismissed for failure to exhaust state
In the present case, Velez has not presented his claims to the Texas Court
Appeals. Accordingly, there has been no fair presentation of his claims to the state court, and thus,
the state court has not had the initial opportunity to pass upon and correct any alleged errors of
Nevertheless, the exhaustion requirement can be excused when exceptional
circumstances exist. Deters
Collins, 985 F.2d 789, 795-96 (5th Cir. 1993). Velez, however,
makes no allegations that any exceptional circumstances are present in this case. Therefore, the
Court finds Velez has failed to exhaust his state court remedies and has failed to allege any
circumstances which would allow the Court to excuse the exhaustion requirement. Nothing in
Velez's Objections addresses these exhaustion issues or changes the Court's conclusion.
Velez's Petition for Writ of Habeas Corpus [#1J must be DISMISSED WITHOUT
PREJUDICE for failure to exhaust his state court remedies.
An appeal may not be taken to the court of appeals from a final order in a proceeding under
2254 "unless a circuit justice or judge issues a certificate of appealability."
2253(c)(l)(A). Pursuant to Rule
of the Federal Rules Governing Section 2254 Proceedings,
2009, the district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C.
2253(c)(2). The Supreme Court fully explained the
requirement associated with a "substantial showing of the denial of a constitutional right" in
529 U.S. 473, 484 (2000).
In cases where a district court rejects a movant's
constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the constitutional claims debatable or wrong." Id. "When a
district court denies a habeas petition on procedural grounds without reaching the petitioner's
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling." Id.
In this case, reasonable jurists could not debate the dismissal of Velez's
2254 petition on
substantive or procedural grounds, nor find the issues presented are adequate to deserve
encouragement to proceed.
Cockrell, 537 U.S. 322,
Thus, a certificate of appealability shall not issue.
IT IS ORDERED that Petitioner George Ve!ez' s Objections [#12] are OVERRULED;
IT IS FURTHER ORDERED that the Report and Recommendation of the United
States Magistrate Judge
IT IS FURTHER ORDERED that Petitioner George Velez's Petition for Writ of
Habeas Corpus [#1] is DISMISSED WITHOUT PREJUDICE;
IT IS FINALLY ORDERED that a certificate of appealability is DENIED.
SIGNED this the
/lday of March 2014.
UNITED STATES DISTRICT JUDGE
133 2254 ordjtwfrrn
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