Henderson v. Davis

Filing 6

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Lorie Davis. Recommends denial of certificate of appealablity. Signed by Judge Andrew W. Austin. (td)

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

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V.
LORIE DAVIS,

A-16-CA-598-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

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 Magistrates.
Before the Court is Petitioner’s Application for Writ of Habeas Corpus under 28 U.S.C.
§ 2254. Petitioner, proceeding pro se, has paid the applicable filing fee. For the reasons set forth
below, the undersigned finds that Petitioner’s application for writ of habeas corpus should be
dismissed without prejudice for failure to exhaust state court remedies.
DISCUSSION
In Cause No. A-16-CV-410-LY, Petitioner argued the Director failed to restore Petitioner’s
previously earned good time credits after 90 days of good behavior following Petitioner’s return to
prison for a parole violation. This Court issued a Report and Recommendation, recommending that
Petitioner’s application for writ of habeas corpus be dismissed for failure to exhaust his state court
remedies. The Court explained Petitioner filed a state application for habeas corpus relief,
presumably raising this same issue in Ex parte Henderson, Appl. No. 27,985-10. However, the

Texas Court of Criminal Appeals dismissed his application because Petitioner did not comply with
the rules for filing a time credit dispute (“TDR”).1
In the instant application for habeas corpus relief, Petitioner argues the revocation of his
parole is unlawful. According to Petitioner, he cannot be returned to the Texas Department of
Criminal Justice merely for a technical violation of his parole. In addition, Petitioner argues his
parole officer violated his supervisor’s orders when he caused Petitioner’s parole to be revoked.
Petitioner additionally argues there was a conflict between his parole certificate and the orders given
to him by his parole officer. Finally, Petitioner repeats his previous claim that his good time credits
must be restored after 90 days of good behavior.
ANALYSIS
As explained previously to Petitioner, a fundamental prerequisite to federal habeas corpus
relief under Title 28 U.S.C. §2254 is the exhaustion of all claims in state court prior to requesting
federal collateral relief. Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995), cert. denied, 516 U.S.
1050 (1996). Section 2254(b) provides:
(1)

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
unless it appears that:
(A)

the applicant has exhausted the remedies available in the
courts of the State; or

(B)

(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.

1

The procedure for disputing time-served credit is found under section 501.0081 of the Texas
Government Code. Under that section, prisoners are required to seek administrative review of their
time-credit disputes by filing a TDR before filing a state habeas application.
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28 U.S.C. § 2254. 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 prisoner’s
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 v. Lundy, 455 U.S. 509, 518
(1982)(citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490-91 ( 1973)).
A petition under 28 U.S.C. § 2254 “must be dismissed if state remedies have not been
exhausted as to any of the federal claims.” Castille v. 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 v.
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 generally, Castille, 489 U.S. at 351. In order to avoid piecemeal
litigation, all grounds raised in a federal application 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
remedies. Id.
In the present case, Petitioner has not properly presented his claims to the Texas Court of
Criminal 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 federal law. Nevertheless, the exhaustion requirement can be excused when exceptional
circumstances exist. Deters v. Collins, 985 F.2d 789 (5th Cir. 1993). However, Petitioner makes
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no allegations that any exceptional circumstances are present in this case. Instead, Petitioner
mistakenly argues he is not required to file a state habeas application to challenge the revocation of
his parole before proceeding to federal court. Petitioner 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.
RECOMMENDATION
It is, therefore, recommended that Petitioner’s Application for Writ of Habeas Corpus be
DISMISSED WITHOUT PREJUDICE for failure to exhaust available state court remedies.
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). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, 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 petitioner 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 (2000). In cases where a district court rejected a petitioner’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
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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 the Petitioner’s section 2254
petition on substantive or procedural grounds, nor find that 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). Accordingly, it is respectfully recommended that the Court shall not issue a
certificate of appealability.
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.
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, 150-153 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc).

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SIGNED this 8th day of June, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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