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Leatherman v. Davis

United States District Court, N.D. Texas, Fort Worth Division

February 20, 2018

PAT DEE LEATHERMAN, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          REED O'CONNOR UNITED STATES DISTRICT JUDGE.

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Pat Dee Leatherman, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be dismissed without prejudice on exhaustion grounds.

         I. BACKGROUND

         On September 9, 2002, pursuant to a plea agreement, Petitioner pleaded guilty in Parker County, Texas, Case No. 14266, to murdering his wife and was sentenced to 30 years' confinement. Pet. 2-3, ECF No. 7. Petitioner did not appeal his conviction or sentence. Id. at 3. He did, however, challenge his conviction in three post-conviction state habeas-corpus applications, filed between 2003 and 2007, to no avail. Adm. R., ECF No. 38.

         II. ISSUES

         In this federal petition, Petitioner raises three grounds for relief, in which he claims he received ineffective assistance of trial counsel; the state violated Brady by withholding the recording of a phone call made by Mildred King to Darlene Leatherman in January 2002; and newly discovered evidence of his innocence in the form of-

affidavits from Darlene Leatherman, Doy Lou Leatherman, Pat Dee Leatherman, and Jennifer Fikes; a hand written letter from Mary Carol Baldree; a documented interview between Attorney Michael K. Burns and Bobbie Whitworth.

Pet. 6-7, ECF No. 7.

         III. RULE 5 STATEMENT

         In her preliminary answer, Respondent asserts that Petitioner did not properly exhaust his state court remedies as to the claims raised and that the petition should therefore be dismissed without prejudice so that Petitioner may exhaust his claims in state court. Resp't's Answer 1, 4-6, ECF No. 37.

         IV. EXHAUSTION

         Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in the state courts before requesting federal habeas relief. 28 U.S.C. § 2254(b)(1), (c)[1]; Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). A state petitioner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claim(s) to the Texas Court of Criminal Appeals in either a petition for discretionary review or, as in this case, a state habeas-corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998); Bd. of Pardons & Paroles v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 484 (Tex. Crim. App. 1995). Petitioner has not yet filed a state habeas-corpus application raising the claims presented and acknowledges that one or more of his claims is raised for the first time in this petition. Pet. 8, ECF No. 7. Petitioner seeks a stay of this proceeding so that he may return to state court for purposes of exhausting his claims. Mot., ECF No. 47.

         In limited circumstances, for good cause shown, stay and abeyance is available to allow a petitioner to return to state court to exhaust his previously unexhausted claims. A stay is appropriate when there is (1) good cause for the failure to exhaust, (2) the unexhausted claims are potentially meritorious, and (3) there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Petitioner provides no reason for his failure to exhaust his state court remedies or proof that he has filed a state habeas-corpus application in an effort to exhaust his claims. The squandering of such an opportunity is exactly what the exhaustion requirement was designed to prevent and, as such, should not be excused.

         V. ...


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