United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
BIERY UNITED STATES DISTRICT JUDGE
the Court are Petitioner Michael Chandler's petition for
federal habeas corpus relief pursuant to 28 U.S.C. §
2254 (Docket Entry 1) and subsequent supplements (Docket
Entries 4-5), as well as Respondent Lorie Davis's
response thereto (Docket Entry 19).
August 2013, petitioner was convicted of two counts of
indecency with a child by exposure and was given consecutive
sentences of life imprisonment and ninety-eight years. He now
challenges the constitutionality of his state court
conviction and sentences, arguing that (1) his trial attorney
was ineffective for failing to object to illegally obtained
evidence; (2) his sentences were improperly enhanced because
the prior convictions used for enhancement were too remote;
and (3) the evidence was legally insufficient to support the
verdict because he was at work at the times the offenses
occurred. Having reviewed the record and pleadings submitted
by both parties, the Court concludes that petitioner is not
entitled to relief because these claims have not been
presented to the state court for review and are thus
unexhausted and procedurally barred from federal habeas
August 3, 2011, petitioner was indicted by a Comal County
grand jury on three counts of indecency with a child by
exposure for exposing his genitals on three separate
occasions to his fifteen-year-old stepdaughter. After being
acquitted on the first count, petitioner was convicted on the
second and third counts and was sentenced by the trial court
to life and ninety-eight years and ten months, respectively.
State v. Chandler, No. CR2011-365 (207th Dist. Ct,
Comal County, Tex. Aug. 1, 2013). On direct appeal to the
Third Court of Appeals, petitioner argued (1) the evidence
was legally insufficient because it did not support the
allegations in the indictment that the offenses took place in
Comal County; (2) the trial court erred in admitting into
evidence "certain search terms" found in the
internet history of his home computer; and (3) his trial
counsel was ineffective because he failed to object to the
introduction of these search terms as irrelevant. The court
of appeals rejected these claims and affirmed
petitioner's conviction. Chandler v. State, No.
03-13-582-CR (Tex. App.-Austin, Oct. 1, 2014, pet. ref d).
Almost five months later, the Texas Court of Criminal Appeals
refused petitioner's petition for discretionary review.
Chandler v. State, No. PD-1447-14 (Tex. Crim. App.
Feb. 25, 2015).
October 28, 2015, petitioner filed a state habeas corpus
application challenging his convictions and sentence. Ex
parte Chandler, No. 78, 068-03 (Tex. Crim. App.) (Docket
Entry 18-23). In this application, he (1) accused the trial
judge of bias, misconduct, and indifference; and (2) asserted
that he was denied due process and effective assistance of
counsel based on appointed counsel's failure to consider
a plea offer that was allegedly offered prior to trial.
(Docket Entry 18-23 at 14-18, 23-37). Petitioner's state
habeas petition was denied without written order by the Texas
Court of Criminal Appeals on January 13, 2016. (Docket Entry
18- 19). The instant federal habeas petition was placed in
the prison mail system on March 18, 2016, and file-marked on
April 1, 2016. (Docket Entry 1 at 10).
to § 2254(b)(1)(A), habeas corpus relief may not be
granted "unless it appears that the applicant has
exhausted the remedies available in the courts of the
State." Under this exhaustion doctrine, a state prisoner
must exhaust available state remedies, thereby giving the
State the opportunity to pass upon and correct alleged
violations of its prisoners' federal rights, before
seeking federal habeas corpus relief. Baldwin v.
Reese, 541 U.S. 27, 29 (2004); Henry v.
Cockrell, 327 F.3d 429, 432 (5th Cir. 2003)
("Absent special circumstances, a federal habeas
petitioner must exhaust his state remedies by pressing his
claims in state court before he may seek federal habeas
relief"). In order to satisfy the exhaustion
requirement, a claim for relief must have been presented to
the highest court of the state for review. Richardson v.
Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). In
Texas, the Texas Court of Criminal Appeals is the highest
state court with jurisdiction to review the validity of a
state criminal conviction. Id.
a petitioner must "fairly present" all of his
claims to the state courts prior to raising them in a federal
habeas corpus application. Duncan v. Henry, 513 U.S.
364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275
(1971). In other words, the state court must have been
presented with the same facts and legal theory upon which an
assertion is based in order for a claim to be exhausted.
Picard, 404 U.S. at 275-77. The exhaustion
requirement is not met if the petitioner presents new legal
theories or factual claims in his federal habeas petition.
Anderson v. Harless, 459 U.S. 4, 6-7 (1982);
Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003)
(holding that "[t]he federal claim must be the
'substantial equivalent' of the claim brought before
the State court."). "Where petitioner advances in
federal court an argument based on a legal theory distinct
from that relied upon in the state court, he fails to satisfy
the exhaustion requirement." Wilder v.
Cockrell, 274 F.3d 255, 259-60 (5th Cir. 2001) (finding
that it "is not enough . . . that a somewhat similar
state-law claim was made.") (citation omitted).
petitioner has not presented the state court with any of the
allegations now brought forth in his federal habeas corpus
petition. Although a petitioner need not spell out each
syllable of a claim to the state court for the claim to have
been "fairly presented, " Riley, 339 F.3d
at 318, a comparison of the claims Mr. Chandler did raise in
his state court proceedings with the claims from the instant
federal petition reveals the claims to be wholly distinct.
Thus, petitioner failed to exhaust available state remedies
and has presented this Court with new claims which the state
court never had the opportunity to review.
despite petitioner's failure exhaust his state court
remedies, his new claims are also subject to denial by this
Court as procedurally defaulted. Gray v. Netherland,
518 U.S. 152, 161 (1996) (finding the exhaustion requirement
to be satisfied "if it is clear that [the habeas
petitioner's] claims are now procedurally barred under
[state] law."); Castille v. Peoples, 489 U.S.
346, 351 (1989); Graham v. Johnson, 94 F.3d 958, 969
(5th Cir. 1996) ("exhaustion is not required if it would
plainly be futile"). As the Fifth Circuit recently
Failure to exhaust state remedies and state procedural
default are related but distinct concepts. If a claim is
merely unexhausted but not procedurally defaulted, then,
absent waiver by the state, a district court must either
dismiss the federal petition or stay the federal proceeding
while the petitioner exhausts the unexhausted claim in state
court. But if a claim is both unexhausted and procedurally
defaulted, then a district court may deny the federal
petition outright. A claim is both unexhausted and
procedurally defaulted where "the prisoner fails to
exhaust available state remedies, and the state court to
which the prisoner would have to present his claims in order
to exhaust them would find the claims procedurally
Norman v. Stephens, 817 F.3d 226, 231 n.l (5th Cir.
2016) (quoting Kittelson v. Dretke, 426 F.3d 306,
315 (5th Cir. 2005)). Thus, although the normal rule is that
a claim is procedurally barred from federal review only when
the last state court to consider the claim expressly and
unambiguously applied a state procedural bar, such a rule
does not apply to cases where a petitioner has failed to
exhaust state remedies and the state court to which he would
be required to present the claim would now find the claims
procedurally barred. Coleman v. Thompson, 501 U.S.
722, 735 n.l (1991).
discussed previously, petitioner failed to exhaust state
court remedies with regard to each of the claims raised in
his federal habeas petition. Should this Court require him to
return to state court to satisfy the exhaustion requirement
with the Texas Court of Criminal Appeals, however, that court
would find the claims procedurally barred under the abuse of
the writ doctrine found in Article 11.07 § 4 of the
Texas Code of Criminal Procedure. The Fifth Circuit has
consistently held that where a petitioner raises claims in
federal court that have not previously been presented to the
state courts, and Article 11.07 § 4 would apply to
foreclose review of the claims if presented in a successive
state habeas application, such is an adequate state
procedural bar foreclosing federal habeas review of the
claims. See, e.g., Bagwell v. Dretke,372 F.3d 748,
755-56 (5th Cir. 2004) (holding a petitioner procedurally
defaulted by failing to "fairly present" a ...