Arriaga v. Tucker
MEMORANDUM OPINION AND ORDER. Signed by Judge Philip R. Martinez. (scf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
TDCJ No. 2059561,
TERRY TUCKER, Warden,
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Petitioner Angel Arriaga’s “Petition
for a Writ of Habeas Corpus by a Person in State Custody” (ECF No. 1)
[hereinafter “Petition”], filed on January 19, 2017, in the above-captioned
cause. Petitioner, a state prisoner at the Middleton Unit in Abilene, Texas,
challenges Respondent Warden Terry Tucker’s custody over him through a
Petition pursuant to 28 U.S.C. § 2254. Petitioner asserts that his trial
counsel provided constitutionally ineffective assistance. After reviewing the
record, the Court concludes that it should dismiss Petitioner’s Petition without
prejudice because he has not exhausted his available state remedies. The
Court additionally concludes that it should deny Petitioner a certificate of
BACKGROUND AND PROCEDURAL HISTORY
Petitioner is currently serving an aggregate, twenty-year sentence
imposed by the 409th Judicial District Court of El Paso County, Texas, after
he pleaded guilty to various offenses related to a vehicular death.1 Mindful of
Petitioner’s pro se status, 2 the Court understands him to assert in his petition
that his counsel provided constitutionally ineffective assistance when he
(1) did not require the State to present evidence, other than hearsay, of his
level of intoxication; (2) failed to have the State present evidence that “it was
the defendant’s vehicle who [sic] cause[d] the victim’s vehicle to overturn and
have [a] passenger . . . ejected”; (3) did not seek a lesser offense, when he knew
that the prosecutor was not ready to proceed; and (4) misled him into pleading
guilty when he knew that the State did not have evidence, other than hearsay,
of his intoxication. 3 Petitioner’s Petition indicates that he filed neither a
State v. Arriaga, 20150D02015 (409th Dist. Ct., El Paso Cnty., Tex. Mar. 2,
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to
be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by
lawyers . . .’”) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Pet’r’s Pet. 6-7, Jan. 19, 2017, ECF No. 1.
direct appeal nor a state application for a writ of habeas corpus. 4
Section 2254 allows a district court to “entertain an application for a writ
of habeas corpus on behalf of a person in custody pursuant to the judgment of a
state court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 5 As a prerequisite to
obtaining § 2254 relief, however, a prisoner must exhaust all remedies
available in the state system. 6 This exhaustion requirement reflects a policy
of federal-state comity “designed to give the State an initial ‘opportunity to
pass upon and correct’ alleged violations of its prisoners’ federal rights.” 7 It
also prevents “unnecessary conflict between courts equally bound to guard and
protect rights secured by the Constitution.”8
A petitioner satisfies the exhaustion requirement when he presents the
Id. at 3.
28 U.S.C. ' 2254(a) (2012).
Id. ' 2254(b)(1), (c); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999).
Picard v. Connor, 404 U.S. 270, 275 (1971) (quoting Wilwording v. Swenson,
404 U.S. 249, 250 (1971)).
Ex Parte Royall, 117 U.S. 241, 251 (1886).
substance of his habeas claims to the state’s highest court in a procedurally
proper manner before filing a petition in federal court. 9 In Texas, the Court of
Criminal Appeals is the highest court for criminal matters. 10 Thus, a Texas
prisoner may only satisfy the exhaustion requirement by presenting both the
factual and legal substance of his claims to the Texas Court of Criminal
Appeals, in either a petition for discretionary review or a state habeas corpus
proceeding pursuant to Texas Code of Criminal Procedure article 11.07. 11
The rules governing § 2254 cases instruct federal district courts to screen
petitions.12 “If it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court, the judge must
Baldwin v. Reese, 541 U.S. 27, 29 (2004); Morris v. Dretke, 379 F.3d 199, 204
(5th Cir. 2004).
Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985).
See Tex. Crim. Proc. Code Ann. art. 11.07 (West) (“This article establishes
the procedures for an application for writ of habeas corpus in which the
applicant seeks relief from a felony judgment imposing a penalty other than
death.”); Tigner v. Cockrell, 264 F.3d 521, 526 (5th Cir. 2001); Alexander v.
Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998).
28 U.S.C. foll. § 2254 Rule 4.
dismiss the petition and direct the clerk to notify the petitioner.”13
In this case, Petitioner’s Petition shows that he has not presented his
claims in a procedurally proper manner to the state’s highest court. 14 Thus,
he has not “exhausted the remedies available in the courts of the State.” 15
Further, he still “has the right under the law of the State to raise . . . the
question[s] presented.” 16 Thus, it is plain from the face of Petitioner’s
Petition that he has not satisfied the preconditions for review set forth in
§ 2254. Dismissal of his Petition for lack of exhaustion is therefore
“[T]here is no doubt that a federal court may raise sua sponte a
petitioner’s failure to exhaust state law remedies and apply that doctrine to
bar federal litigation of petitioner’s claims until exhaustion is complete.” 17
Pet’r’s Pet. 3, May 17, 2016, ECF No. 1-1; see State v. Flores, PD-0220-16
(Tex. Crim. App. notice of pet. for cert. filed Mar. 14, 2016); see also Ex parte
Flores, WR-78,188-03 (Tex. Crim. App. May 18, 2016) (“This is to advise that
your application for writ of habeas corpus has been dismissed. Conviction not
final; mandate not issued at time application filed in trial court.”).
28 U.S.C. § 2254(b)(1)(A).
Id. § 2254(c).
Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir. 1998) (citing Granberry v.
However, “[d]ismissing an action after giving the plaintiff only one
opportunity to state his case is ordinarily unjustified.” 18 “This rule against
no-notice sua sponte dismissal is subject to two exceptions: if the dismissal is
without prejudice, or if the plaintiff has alleged his best case.” 19
Petitioner notes the trial court entered its judgment on March 2, 2016,20
and, because he did not file a notice of appeal, his conviction became final
thirty days later. 21 Claims under § 2254 are generally subject to a one-year
statute of limitations. 22 The limitations period runs from the latest of four
different events: (1) when “the judgment became final,” (2) when “the
impediment to filing an application created by the State action in violation of
the Constitution and laws of the United States is removed, if the applicant was
Greer, 481 U.S. 129, 129-33 (1987).
Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986).
Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 2016) (citing Bazrowx v. Scott,
136 F.3d 1053, 1054 (5th Cir. 1998)).
Pet’r’s Pet. 2.
Tex. R. App. P. 26.2(a).
28 U.S.C. § 2244(d)(1) (2012).
prevented from filing by such State action,” (3) when “the constitutional right
asserted was initially recognized by the Supreme Court . . . and made
retroactively applicable to cases on collateral review,” or (4) when “the factual
predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.” 23 The limitations period is tolled by statute,
however, when “a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending.”24
Accordingly, the Court concludes that it should use the first exception to
the rule against no-notice sua sponte dismissals and dismiss Petitioner’s
Petition without prejudice, with a view toward Petitioner exhausting his state
remedies through a state application for a writ of habeas corpus, and then
return to this Court, if he so desires.
CERTIFICATE OF APPEALABILITY
A petitioner may not appeal a final order in a habeas corpus proceeding
“[u]nless a circuit justice or judge issues a certificate of appealability.”25 To
Id. §§ 2244(d)(1)(A)B(D).
Id. § 2244(d)(2).
28 U.S.C. § 2253(c)(1) (2012).
warrant the granting of the certificate as to claims that the district court
rejects solely on procedural grounds, the petitioner must show both 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.” 26 The Court finds that jurists of reason would not debate whether the
procedural ruling in this case is correct. The Court, therefore, finds it should
deny Arriaga a certificate of appealability.
For the reasons discussed above, the Court concludes that Petitioner is
not entitled to federal habeas corpus relief at this time. Accordingly, the
Court enters the following orders:
IT IS ORDERED that Petitioner Angel Arriaga’s “Petition for a Writ of
Habeas Corpus by a Person in State Custody” is DISMISSED WITHOUT
PREJUDICE for failure to exhaust his state remedies.
IT IS FURTHER ORDERED that Petitioner Angel Arriaga is
DENIED a certificate of appealability.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS ALSO ORDERED that all pending motions, if any, are DENIED.
IT IS FINALLY ORDERED that the District Clerk shall CLOSE this
SIGNED this 28th day of February, 2017.
PHILIP R. MARTINEZ
UNITED STATES DISTRICT JUDGE
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