Simiens v. Stephens
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 8 Report and Recommendations. FURTHER ORDERED that Petitioner Tristan DeShun Simiens's Petition for Writ of Habeas Corpus # 1 is DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies; FINALLY ORDERED that a certificate of appealability is DENIED. Signed by Judge Sam Sparks. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
NOV -7 p
TRISTAN DeSHUN SIMIENS,'
Case No. A-14-CA-368-SS
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Petitioner Tristan DeShun Simiens's Petition for Writ of Habeas Corpus [#1] and the
Report and Recommendation of the Magistrate Judge [#8]. Having reviewed the documents, the
governing 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 ofTexas, Local Rules
for the Assignment of Duties to United States Magistrate Judges. Simiens is entitled to de novo
review of the portions of the Magistrate Judge's report to which he filed specific objections. 28
636(b)(1). All other review is for plain error.
524 F.3d 612, 617 (5th
Cir. 2008). Nevertheless, this Court has reviewed the entire file de novo, and agrees with the
Magistrate Judge's recommendation.
Petitioner's state criminal documents spell his last name "Simien."
(Offender Information Details).
State Court Records [#6-1], Ex.
Stephens avers he has lawful custody of Simiens pursuant to a judgment and sentence of the
26th Judicial District Court of Williamson County, Texas. Simiens was convicted of bail jumping,
a third-degree felony, and on April 19, 2012, was sentenced to four years' imprisonment. Simiens,
however, is not challenging his holding conviction. Rather, he is challenging the refusal of the
Board of Pardons and Paroles to release him on discretionary mandatory supervision.
The Board reviewed Simiens' s case and declined to release him on discretionary mandatory
supervision on December 30, 2013. Simiens challenged the Board's denial through a Time Dispute
Resolution form; however, he has not filed a state application for habeas corpus relief concerning
As the Magistrate Judge's report explains in more detail, a fundamental prerequisite to
federal habeas relief under § 2254 is the prior exhaustion of all remedies in state court. Sterling v.
Scott, 57 F.3d 451, 453 (5th Cir. 1995). In Texas, this "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). A petition under
2254 "must be dismissed if state remedies have not been exhausted as to any of the federal claims."
Peoples, 489 U.S. 346, 349 (1989). As Simiens has not yet filed a state habeas petition
challenging the Board's refusal to release him on discretionary mandatory supervision, his federal
habeas application must be dismissed as unexhausted.
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." 28 U.S.C.
2253(c)(1)(A). Pursuant to Rule
of the Federal Rules Governing Section 2254 Proceedings,
effective December 1, 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 Slack
McDaniel, 529 U.S. 473, 484 (2000).
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 Simiens's
on substantive or procedural grounds, nor find the issues presented are adequate to deserve
encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S.
at 484)). Thus, a certificate of appealability shall not issue.
IT IS ORDERED that the Report and Recommendation of the Magistrate Judge [#8]
IT IS FURTHER ORDERED that Petitioner Tristan DeShun Simiens's Petition for
Writ of Habeas Corpus [#1] is DISMISSED WITHOUT PREJUDICE for failure to exhaust
IT IS FINALLY ORDERED that a certificate of appealability is DENIED.
SIGNED this the
day of November 2014.
UNITED STATES DISTRICT JUDGE
368 2254 ord ba.frm
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