United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
H. BENNETT UNITED STATES DISTRICT JUDGE
Edgar Arturo Sazo, a Texas state inmate, has filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254,
seeking relief from a state court conviction and sentence.
Sazo proceeds pro se and presumably moves for leave
to proceed in forma pauperis. The threshold issue is
whether Sazo has exhausted his state court remedies as
required for this case to proceed. After reviewing the
pleadings and the applicable law under Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts, the Court concludes this case must be dismissed. The
reasons are explained below.
currently incarcerated in the Texas Department of Criminal
Justice -Correctional Institutions Division as the result of
a 2010 conviction in Montgomery County Cause Number
10-08-09212-CR. Sazo was convicted of murder and sentenced to
30 years' imprisonment. The Ninth Court of Appeals of
Texas affirmed Sazo's conviction on direct appeal.
Sazo v. State, No. 09-10-00460-CR, 2011 WL 3925671
(Tex. App.-Beaumont 2011, no pet.). Sazo did not file a
petition for discretionary review.
petition dated February 6, 2018, Sazo now seeks a federal
writ of habeas corpus to challenge his conviction for murder.
In his petition, Sazo alleges he is entitled to relief based
on the following grounds: (1) involuntary guilty plea; (2)
prosecutorial misconduct; (3) due process violations during
the police investigation; (4) ineffective assistance of trial
counsel; and (5) violation of his Fifth Amendment privilege
against self-incrimination. Sazo has not filed an application
for a state writ of habeas corpus under Article 11.07 of the
Texas Code of Criminal Procedure to challenge this
conviction. Thus, the Texas Court of Criminal Appeals has not
addressed the issues that he now attempts to present in
federal court. Because the state's highest court of
criminal jurisdiction has not yet completed its review of
that application, the pending federal petition must be
dismissed for reasons that follow.
Exhaustion of Remedies Under the governing federal
habeas corpus statutes, "[a]n application for a writ of
habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it
appears that... the applicant has exhausted the remedies
available in the courts of the State." 28 U.S.C. §
2254(b)(1)(A). Thus, a petitioner "must exhaust all
available state remedies before he may obtain federal habeas
corpus relief." Sones v. Hargett, 6\ F.3d410,
414(5thCir. 1995). The exhaustion requirement "is not
jurisdictional, but 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." Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (quoting
Wilder v. Cockrell, 274 F.3d 255, 260 (5th Cir.
2001)). Exceptions exist only where there is an absence of
available State corrective process or circumstances exist
that render such process ineffective to protect the rights of
the applicant. See 28 U.S.C. § 2254(b)(1)(B). A
reviewing court may raise a petitioner's failure to
exhaust sua sponte. Tigner v. Cockrell, 264 F.3d
521, 526 (5th Cir. 2001).
exhaust his state remedies under the applicable statutory
framework, a habeas petitioner must fairly present the
substance of his claims to the state courts. Nobles v.
Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citing
Picard v. Connor, 404 U.S. 270, 275-76 (1971));
Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir.
1990). A federal habeas petitioner shall not be deemed to
have exhausted the remedies available in the state courts
"if he has the right under the law of the State to
raise, by any available procedure, the question
presented." 28 U.S.C. § 2254(c). In Texas, a
criminal defendant may challenge a conviction by taking the
following paths: (1) the petitioner may file a direct appeal
followed, if necessary, by a petition for discretionary
review in the Texas Court of Criminal Appeals; and/or (2) he
may file a petition for writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure in the
convicting court, which is transmitted to the Texas Court of
Criminal Appeals once the trial court determines whether
findings are necessary. See Tex. Code Crim. Proc.
art. 11.07 § 3(c); see also Busby v. Dretke,
359 F.3d 708, 723 (5th Cir. 2004) ("Habeas petitioners
must exhaust state remedies by pursuing their claims through
one complete cycle of either state direct appeal or
post-conviction collateral proceedings.").
pleadings in this case as well as the Court's independent
review of available state court records demonstrate that the
Court of Criminal Appeals has not yet had an opportunity to
address the issues raised in the pending petition. Because
this state process remains available, Sazo does not satisfy
any statutory exception to the exhaustion doctrine. Comity
requires this Court to defer until the Texas Court of
Criminal Appeals has addressed Sazo's claims. It follows
that the pending federal habeas petition must be dismissed as
premature for lack of exhaustion.
Certificate of Appealability
the habeas corpus petition filed in this case is governed by
the Antiterrorism and Effective Death Penalty Act, codified
as amended at 28 U.S.C. § 2253, a certificate of
appealability is required before an appeal may proceed.
See Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th
Cir. 1997) (noting that actions filed under either 28 U.S.C.
§ 2254 or § 2255 require a certificate of
appealability). "This is a jurisdictional prerequisite
because the COA statute mandates that '[u]nless a circuit
justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals'"
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(citing 28 U.S.C. § 2253(c)(1)).
district court may deny a certificate of appealability,
sua sponte, without requiring further briefing or
argument. See Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000). Because the exhaustion prerequisite to
federal habeas corpus review is well-established, the court
concludes that jurists of reason would not debate whether the
procedural ruling in this case was correct. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a
certificate of appealability will not issue in this case.
Conclusion and Order
on the foregoing, the Court orders as follows:
1. This case is DISMISSED without prejudice
for failure to exhaust all available remedies on all claims
to the state's highest court of criminal jurisdiction as
required by 28 U.S.C. § 2254.