Nicholas v. Hamilton

Filing 7

REPORT AND RECOMMENDATION that the District Court DISMISS Nicholas' 1 Petition for Writ of Habeas Corpus for failure to exhaust all state court remedies. Signed by Judge Mark Lane. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MELVIN NICHOLAS
Petitioner
V.
SHERIFF GREG HAMILTON
Respondent

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A-15-CV-00323-RP-ML

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN,
UNITED STATES DISTRICT JUDGE
Before the Court is Petitioner’s § 2241 Petition for habeas corpus relief, received April
23, 2015 [Clerk’s Dkt. #1]. The Petition has been referred to the undersigned by United States
District Judge, Robert Pitman, for Report and Recommendation pursuant to 28 U.S.C. § 636(b)
and Rule 1(e) of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas.
I.

BACKGROUND
Petitioner complains of his March 11, 2015 arrest and his continuing detention at the

Travis County Correctional Center in Del Valle, Texas. [Dkt. #1] at 1. He asserts his arrest was
unlawful because it was based on false information. Id. at 3, 8. He further argues the officer
had no authority or jurisdiction to arrest him, id., but this argument relates back to his original
contention that the arrest was founded on “faulty or tainted information demons.” Id. Petitioner
asks the court to enter judgment setting aside the indictment, discharging the prosecution, and
releasing the prisoner from confinement. Id. at 9.

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II.

DISCUSSION
A state pretrial detainee or prisoner is entitled to raise constitutional claims in a federal

habeas proceeding under § 2241. See 28 U.S.C. § 2241(c); Dickerson v. Louisiana, 816 F.2d
220, 224 (5th Cir. 1987). Well-settled case law holds, however, that the petitioner must first
exhaust available state court remedies as to each and every ground upon which he claims
entitlement to habeas relief, whether he seeks relief pursuant to § 2241 or § 2254. Dickerson, 816
F.2d at 225; Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). 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). A total exhaustion rule promotes comity and such a
rule does not unreasonably impair a prisoner’s right to relief. Rose, 455 U.S. at 523. The state
courts must be given a fair opportunity to hear and consider the claims raised by an applicant
before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct.
509, 30 L. Ed. 2d 438 (1971). A petitioner may be excused from the exhaustion requirement only
if he can show exceptional circumstances of peculiar urgency. Deters v. Collins, 985 F.2d 789,
795 (5th Cir. 1993). 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 can 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).
Because Nicholas seeks relief pursuant to 28 U.S.C. § 2241, and habeas corpus is the
appropriate remedy, he must comply with the statutory and jurisprudential requirements
concerning exhaustion of available state court remedies. A review of the Texas Court of
Criminal Appeals’ docket reflects that Nicholas has not filed a petition for review or a writ of
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habeas corpus with that court. Thus, Nicholas has not satisfied the exhaustion requirement as to
the claims presented in the instant § 2241. In addition, he has not shown that he should otherwise
be excused from the exhaustion requirement due to exceptional circumstances warranting federal
intrusion at this juncture. Accordingly, the Petition should be dismissed for failure to exhaust all
available state court remedies.
III.

CONCLUSION
Accordingly, the undersigned RECOMMENDS Petitioner’s § 2241 Petition [Dkt. #1] be

DISMISSED without prejudice for failure to exhaust all state court remedies.
IV.

OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing

objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
See Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the
Report shall bar that party from de novo review by the District Court of the proposed findings
and recommendations in the Report and, except upon grounds of plain error, shall bar the party
from appellate review of unobjected-to proposed factual findings and legal conclusions accepted
by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106
S. Ct. 466, 472-74 (1985); Douglass v. United Services Automobile Ass’n, 79 F.3d 1415 (5th Cir.
1996)(en banc).

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To the extent that a party has not been served by the Clerk with this Report &
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 receipt requested.

SIGNED this the 23rd day of June, 2015.
_______________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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