Ramirez v. District Court 4 Travis County, Texas

Filing 4

REPORT AND RECOMMENDATION GRANTING 2 Motion to Proceed in forma pauperis filed by Humberto Juan Ramirez. IT IS RECOMMENDED that that the District Court DISMISS WITHOUT PREJUDICE Ramirez's 1 Petition for Writ of Habeas Corpus. IT IS FURTHER RECOMMENDED that the District Court DENY the issuance of a COA. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

HUMBERTO JUAN RAMIREZ

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DISTRICT COURT 4, TRAVIS COUNTY, §
TEXAS
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A-15-CV-513- RP

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Before the Court is Petitioner Humberto Juan Ramirez’s Writ of Habeas Corpus pursuant to

28 U.S.C. § 2241 (Dkt. No. 1), and Motion to Proceed In Forma Pauperis (Dkt. No. 2). 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 Petitioner’s Petition for Writ of Habeas Corpus should be
dismissed without prejudice for the reasons set out below.
I. IFP STATUS
After considering Ramirez’s financial affidavit, the Court finds that he is indigent.
Accordingly, the Court GRANTS Ramirez’s Motion to Proceed In Forma Pauperis (Dkt. No. 2) and
grants him in forma pauperis status in this case. Because Ramirez has been granted leave to proceed
in forma pauperis, the Court is required by standing order to review the action pursuant to 28 U.S.C.
§1915(e)(2).

II. REVIEW UNDER 28 U.S.C. § 1915
Under 28 U.S.C. § 1915(e)(2)(B)(i), a district court may dismiss as frivolous a prisoner’s IFP
complaint if it lacks any arguable basis in law or fact. See Neitzke v. Williams, 490 U.S. 319–325,
(1989); Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999); McDonald v. Johnson, 139 F.3d
1056, 1060 (5th Cir. 1998). “A complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if the complaint alleges violation of a legal interest which
clearly does not exist.” Harper, 174 F.3d at 718 (quoting Davis v. Scott, 157 F.3d 1003, 1005 (5th
Cir. 1998)). A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional
scenarios’ or the legal theory upon which a complaint relies is ‘indisputably meritless.’” Eason v.
Thaler, 14 F.3d 8, 9 n. 5 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327–28).
A district court may dismiss a case under 28 U.S.C. § 1915 for failure to exhaust
administrative remedies. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); Rourke v.
Thompson, 11 F.3d 47, 49 (5th Cir. 1993).
III. GENERAL BACKGROUND
At the time of filing, Ramirez was a pre-trial detainee confined at Travis County Correctional
Complex awaiting trial on the state charge of Felony Assault Family Violence Strangulation, a third
degree felony under Texas law. See Tex. Penal Code § 22.01(b)(2)(B). In his Petition, Ramirez
complains that the prosecution has failed to adjudicate his case in a timely manner. In addition, he
contends that he has been deprived the effective assistance of counsel. Ramirez requests that he be
released from custody immediately and that all charges against him are dismissed.

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IV. ANALYSIS
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), cert. denied, 484 U.S. 956 (1987). However, he 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 (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). 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 postconviction writ of habeas corpus before a pretrial detainee may seek
federal habeas corpus relief. 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 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 (1971). A 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 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), cert. denied, 501 U.S. 1235 (1991).
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Because Ramirez seeks relief pursuant to 28 U.S.C. § 2241, and since 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 Ramirez has not filed a petition for review or a writ of habeas corpus with that
court. Thus, Ramirez 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, Ramirez’s § 2241 Petition should be dismissed for failure to exhaust all
available state court remedies.
V. RECOMMENDATION
Based upon the foregoing, the undersigned HEREBY RECOMMENDS that the District
Court DISMISS WITHOUT PREJUDICE Humberto Juan Ramirez’s Petition for Writ of Habeas
Corpus pursuant to § 2241 (Dkt. No. 1) for failure to exhaust all available state court remedies.
VI. 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.”
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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
appealability.
VII. OBJECTIONS
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. 1988).
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

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ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 6th day of July, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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