Gonzalez v. Vasquez
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Jose A. Gonzalez. RECOMMENDATION that the District Court DISMISS WITHOUT PREJUDICE Jose A. Gonzalezs Petition for Writ of Habeas Corpus pursuant to § 2241 (Dkt. No. 1) for failure to exhaust all available state court remedies. It is recommended that the Court shall not issue a certificate of appealability.. Signed by Judge Andrew W. Austin. (os)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
JOSE A. GONZALEZ
N. VASQUEZ, WARDEN FCC-LOW
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Before the Court is Petitioner Jose A. Gonzalez’s Writ of Habeas Corpus brought pursuant to
28 U.S.C. § 2241 (Dkt. No. 1). The Court submits this Report and Recommendation to the United
States District Court pursuant to 28 U.S.C. §636(b) and Rule 1 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. The undersigned finds that Gonzalez’s
Petition for Writ of Habeas Corpus should be dismissed without prejudice for the reasons set out
I. GENERAL BACKGROUND
On November 8, 2011, Petitioner Jose A. Gonzalez (“Gonzalez”) was indicted in the Southern
District of Texas (Laredo) for conspiracy to possess with intent to distribute a quantity of cocaine of
five kilograms or more (count one), and for possession with intent to distribute five kilograms or more
of cocaine (count two). See United States v. Gonzalez, 5:11-cr-01246. After Gonzalez pled guilty to
both counts, the District Court sentenced Gonzalez to 180 months of imprisonment, followed by a fiveyear term of supervised release and a $200 special assessment fee. Gonzalez is currently serving his
sentence at the Federal Correctional Complex-Low in Beaumont, Texas. Gonzalez originally filed this
Petition in the Eastern District of Texas, Beaumont Division. On February 10, 2015, the Eastern
District of Texas transferred the case to the Western District of Texas.
Before Gonzalez was indicted for his federal drug offenses, he was indicted by the State of
Texas for money laundering, bail jumping, and failure to appear. See State of Texas v. Gonzalez, 10224-K26, 10-1761-K26 (26th Dist. Ct., Williamson County, Tex. Dec. 15, 2010). Gonzalez has not
yet been tried for those offenses, and he has filed a Motion to Request Disposition of Pending Charges
Pursuant to the Interstate Agreement on Detainers Act and a Motion for Dismissal, which are
scheduled to be heard by the state district court on February 29, 2016. In this case, Gonzalez argues
that his state charges should be dismissed for violation of the Interstate Agreement on Detainers Act
and the Speedy Trial Act.
A state prisoner subject to untried charges may bring a pretrial habeas corpus action in federal
court pursuant to 28 U.S.C. § 2241 to “demand enforcement of the [State’s] affirmative constitutional
obligation to bring him promptly to trial.” Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-90
(1973). However, a state prisoner or pretrial detainee must first exhaust state court remedies prior to
seeking habeas relief in federal court. Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987), cert.
denied, 484 U.S. 956 (1987). Generally, the exhaustion requirement is satisfied only when the grounds
urged in a federal petition were first fairly presented to the state’s highest court in a procedurally
proper manner. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). In Texas, this requires that the
claims be presented to the Texas Court of Criminal Appeals by way of either a petition for
discretionary review or post conviction writ of habeas corpus. See Deters v.Collins, 985 F.2d 789, 795
(5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Sones v. Hargett, 61 F.3d
410, 415 (5th Cir. 1995). A total exhaustion rule promotes comity and such a rule does not
Rose v. Lundy, 455 U.S. 509, 523 (1982). A
unreasonably impair a prisoner’s right to relief.
petitioner may be excused from the exhaustion requirement only if he can show exceptional
circumstances of peculiar urgency. Deters, 985 F.2d at 795. A federal district court may take notice
sua sponte of the lack of exhaustion. Shute v. Texas, 117 F.3d 233, 237 (5th Cir. 1997). Federal
courts may dismiss without prejudice the entirety of a federal habeas petition that contains any
unexhausted grounds for relief. See Rose, 455 U.S. at 510; Thomas v. Collins, 919 F.2d 333, 334 (5th
Cir. 1990), cert. denied, 501 U.S. 1235 (1991).
Gonzalez has not satisfied the exhaustion requirement in his case. The state trial court has yet
to rule on Gonzalez’s claims regarding the Interstate Agreement on Detainers Act, and even once that
court rules, Gonzalez or the State will need to present that ruling to the Texas Court of Criminal
Appeals for Gonzalez to have fully exhausted his state court remedies. Further, Gonzalez has not
shown that he should be excused from the exhaustion requirement due to exceptional circumstances
warranting federal intrusion at this juncture. Accordingly, Gonzalez’s § 2241 Petition should be
dismissed for failure to exhaust all available state court remedies. See Arnold v. Hobbs, 2013 WL
5724133, at * 2 (N.D. Miss. Oct. 21, 2013) (dismissing Speedy Trial Act claims where petitioner failed
to exhaust his claim in state court); Quintana v. Darr, 2007 WL 2683795, at * 2 (D. Co. Sept. 6, 2007)
(dismissing § 2241 petition invoking Interstate Agreement on Detainers Act where petitioner failed
to exhaust state court remedies).
Based upon the foregoing, the undersigned HEREBY RECOMMENDS that the District Court
DISMISS WITHOUT PREJUDICE Jose A. Gonzalez’s Petition for Writ of Habeas Corpus pursuant
to § 2241 (Dkt. No. 1) for failure to exhaust all available state court remedies.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)
(1)(A). 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 v.
McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a District Court rejected 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 Petitioner’s habeas petition on
procedural grounds, nor find that the issues presented are adequate to deserve encouragement to
proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029 (2003) (citing Slack, 529 U.S. at
484). Accordingly, it is respectfully recommended that the Court shall not issue a certificate of
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by the
district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest injustice.
Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir.
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 12th day of January, 2016.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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