United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
R. MEANS UNITED STATES DISTRICT JUDGE.
the Court is a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by petitioner, Joe Don McDonald,
a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions
Division, Respondent. After having considered the pleadings
and relief sought by Petitioner, the Court has concluded that
the petition should be dismissed for failure to exhaust
Factual and Procedural History
January 16, 2014, in the 355th Judicial District Court, Hood
County, Texas, Case No. CR12488, Petitioner pleaded guilty to
one count of delivery of a controlled substance,
methamphetamine (one gram or more but less than four grams)
and true to the enhancement paragraph as alleged in the
indictment. A jury assessed his punishment at 40 years'
confinement. (Adm. R., Clerk's R. 7-8, ECF No. 13-9.)
Petitioner appealed his conviction, and the Second District
Court of Appeals of Texas affirmed the trial court's
judgment, and, on October 14, 2015, the Texas Court of
Criminal Appeals refused Petitioner's petition for
discretionary review. (Id., Mem. Op. 12-13, ECF No.
13-3.) Petitioner did not seek a writ of certiorari or file a
postconviction state habeas application. (Pet. 3, ECF No. 1;
Resp't's Preliminary Resp., Ex. A, ECF No. 11.) This
federal habeas petition was filed on May 22, 2016.
Spotville v. Cain, 149 F.3d 374, 377 (5th Cir.
1998). Respondent has filed a preliminary response asserting
the petition should be dismissed on exhaustion grounds.
(Resp't's Preliminary Resp. 3-5, ECF No. 11.)
Exhaustion of State-Court Remedies
seeking habeas-corpus relief under § 2254 are required
to exhaust all claims in state court before requesting
federal collateral relief. See 28 U.S.C. §
2254(b)(1), (c); Fisher v. State, 169 F.3d 295, 302
(5th Cir. 1999). The exhaustion requirement is satisfied when
the substance of the federal habeas claim has been fairly
presented to the highest court of the state.
O'Sullivan v. Boerckel, 526 U.S. 838, 842-48
(1999); Fisher, 169 F.3d at 302; Carter v.
Estelle, 677 F.2d 427, 443 (5th Cir. 1982). For purposes
of exhaustion, the Texas Court of Criminal Appeals is the
highest court in the state. Richardson v. Procunier,
762 F.2d 429, 431 (5th Cir. 1985). Thus, a Texas prisoner may
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 postconviction habeas-corpus application pursuant
to article 11.07 of the Texas Code of Criminal Procedure.
See Tex. Code Crim. Proc. Ann. art. 11.07 (West
Supp. 2013); Anderson v. Johnson, 338 F.3d 382, 388
n.22 (5th Cir. 2003).
raises two grounds for relief: (1) prosecutorial misconduct
and (2) double-jeopardy violation. (Pet. 6, 11-13, ECF No.
1.) The first claim, raised for the first in this federal
petition, is unexhausted for purposes of § 2254(b)(1).
The second claim, although raised in Petitioner's
petition for discretionary review, was not properly filed.
While a petitioner need not file both a petition for
discretionary review and a state application for
habeas-corpus relief to exhaust his claims for federal habeas
review, claims raised for the first time in a petition for
discretionary review are not exhausted for federal
habeas-corpus purposes if, as in this case, the petitioner
did not file a state petition for habeas-corpus relief.
Castille v. Peoples, 489 U.S. 346, 351 (1989);
Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir.
1990). The Texas Court of Criminal Appeals does not entertain
claims raised for the first time in a petition for
discretionary review. Ex parte Queen, 877 S.W.2d
752, 755 n.4 (Tex. Crim. App. 1994).
the Texas Court of Criminal Appeals has had no opportunity to
review Petitioner's claims and render a decision.
Therefore, a ruling from this Court at this juncture would
preempt the state court from performing its proper function.
See Rose v. Lundy, 455 U.S. 509, 518 (1982) (the
exhaustion requirement is “designed to protect the
state courts' role in the enforcement of federal law and
prevent the disruption of state judicial proceedings”).
Consequently, Petitioner must first pursue to completion his
state court remedies, via a state habeas application
under article 11.07, before seeking relief under § 2254.
Absent a showing that no state “corrective
process” is available to Petitioner or that such
process is somehow rendered ineffective by the circumstances
of his case, Petitioner cannot now proceed in federal court
in habeas corpus. 28 U.S.C. § 2254(b)(1)(B).
Accordingly, dismissal of this petition for lack of
exhaustion is warranted so that Petitioner can fully exhaust
his state-court remedies and then return to this court, if he
so desires, after exhaustion has been properly and fully
Court is aware that, since the filing of a federal petition
for habeas relief does not toll the federal limitations
period, Petitioner may likely be time-barred under the
federal statute of limitations in 28 U.S.C. § 2244(d)(1)
if and when he returns to this Court after exhausting his
state remedies relating to his claims. Under these
circumstances, this Court has the discretion to either abate
or dismiss a federal habeas action pending resolution of
state habeas proceedings. See Brewer v. Johnson, 139
F.3d 491, 493 (5th Cir. 1998). However, abatement of the
instant proceeding pending any future federal-court
proceedings is not warranted in this case. Stay and abeyance
should be granted only in limited circumstances when there is
good cause for the failure to exhaust, the unexhausted claims
are potentially meritorious, and there is no indication that
the petitioner engaged in intentionally dilatory litigation
tactics. See Rhines v. Weber, 544 U.S. 269, 277
(2005). Petitioner did not respond to Respondent's
preliminary response or otherwise assert any explanation for
his failure to exhaust his claims first in state court.
reasons discussed, the Court DISMISSES Petitioner's
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 without prejudice for failure to exhaust
Federal Rule of Appellate Procedure 22 provides that an
appeal may not proceed unless a certificate of appealability
is issued under 28 U.S.C. § 2253. The certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” Miller-El v. Cockrell,537 U.S. 322,
336 (2003). “Under this standard, when a district court
denies habeas relief by rejecting constitutional claims on
their merits, ‘the petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.'” McGowen v. Thaler,675 F.3d 482,
498 (5th Cir. 2012) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)). When the district court denies the
petition on procedural grounds without reaching the merits,
the petitioner must show “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.
(quoting Slack, 529 U.S. at ...