Green v. Davis

Filing 5

ORDER DISMISSING WITHOUT PREJUDICE 1 Petition for Writ of Habeas Corpus filed by Sherrie Leann Green. It is further ORDERED that a certificate of appealability is DENIED. Signed by Judge Robert Pitman. (dl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SHERRIELEANN GREEN
V.
LORIE DAVIS

§
§
§
§
§

CIVIL NO. A-18-CA-361-RP

ORDER
Before the Court is Petitioner’s Application for Writ of Habeas Corpus under 28 U.S.C.
§ 2254. Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis. For the
reasons set forth below, Petitioner’s application for writ of habeas corpus is dismissed without
prejudice for failure to exhaust state court remedies.
BACKGROUND
According to Petitioner, the Director has custody of her pursuant to a judgment and sentence
of the 52nd Judicial District Court of Coryell County, Texas. Petitioner asserts she was sentenced
on December 18, 2016. Petitioner admits she did not appeal her conviction or file a state application
for habeas corpus relief.
ANALYSIS
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.

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.

2

In the present case, Petitioner has not presented her claims to the Texas Court of Criminal
Appeals. Accordingly, there has been no fair presentation of her 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
no allegations that any exceptional circumstances are present in this case.
CONCLUSION
The Court finds that Petitioner has failed to exhaust her state court remedies and has failed
to allege any circumstances which would allow the Court to excuse the exhaustion requirement.
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
3

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 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).
It is therefore ORDERED that Petitioner’s Application for Writ of Habeas Corpus be
DISMISSED WITHOUT PREJUDICE for failure to exhaust available state court remedies.
It is further ORDERED that a certificate of appealability is DENIED.
SIGNED on May 23, 2018.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

4