United States District Court, N.D. Texas
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Rodney Dimitrius Lake, a
state prisoner currently confined in the Tarrant County jail,
against Bill E. Waybourn, sheriff of Tarrant County, Texas.
After having considered the pleadings, public records, and
relief sought by petitioner, the court has concluded that the
petition should be dismissed on exhaustion grounds.
Factual and Procedural History
August 6, 2010, a jury in Tarrant County, Texas, Case No.
1173627D, found petitioner guilty of sexual assault of a
child under 17 years of age, assessed his punishment at ten
years' confinement and a $10, 000 fine, and recommended
that the sentence be suspended. (Resp't's Resp., Ex.
A) The trial court followed the jury's recommendation and
placed petitioner on community-supervision for ten years.
(Id.) The state later moved to revoke
petitioner's community supervision for violations of his
conditions of release, and, on October 16, 2013, the trial
court revoked his community supervision and imposed a
ten-year sentence. (Id., Ex. B.) Petitioner appealed
his revocation to the Second Court of Appeals of Texas, and
the appellate court reversed the trial court's judgment
on one of two points, holding that the trial court's
refusal to allow petitioner to present closing argument
during the revocation hearing was reversible error, and
remanded the case for a new trial. Lake v. State,
481 S.W.3d 656 (Tex. App.-Fort Worth, 2015). Thereafter, the
state filed a petition for discretionary review challenging
the appellate court's ruling, and, on February 8, 2017,
the Texas Court of Criminal Appeals reversed and remanded the
case to the appellate court for a harmless error analysis on
the issue. Lake v. State, - S.W.3d -, 2017 WL 514588
(Tex. Crim. App. Feb. 8, 2017) .
grounds for relief, the majority of which are raised for the
first time in this habeas petition, are construed as follows:
(1) his right to due process was violated by the trial
court's denial of his right to closing argument;
(2) the appellate court did not timely rule on the
state's motion for rehearing;
(3) his continued incarceration after the appellate court
reversed and remanded his case is illegal;
(4) the appellate court's judgment is a published
(5) the trial court failed to consider the full range of
punishment based on the facts and testimonial evidence and
had an inconsiderate attitude towards him; and
(6) his attorney and the prosecution, both officers of the
court, engaged in obstruction of justice by failing to object
or request the reasoning for the trial judge's
"repulsive actions and conduct" in disallowing
(Pet. 6-7 & Attach. 1-3, ECF No. 1.)
has filed a responsive pleading, asserting, among other
things, that the petition should be dismissed without
prejudice on exhaustion grounds. (Resp't's Resp. 5-6,
ECF No. 9.) Petitioner did not file a reply, however he has
filed several status requests with the clerk of court seeking
resolution of his habeas petition.
Exhaustion of ...