United States District Court, W.D. Texas, Austin Division
JAMES A. BROWN
THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. §636(b) and
Rule 1(e) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United
States Magistrate Judges.
the Court is Petitioner's Application for Habeas Corpus
Relief under 28 U.S.C. § 2254 (Document 1). Petitioner,
proceeding pro se, has been granted leave to proceed in forma
pauperis. For the reasons set forth below, the undersigned
finds that Petitioner's application for writ of habeas
corpus should be dismissed.
STATEMENT OF THE CASE
Petitioner's Criminal History
Director has custody of Petitioner pursuant to a judgment and
sentence of the 331st Judicial District Court of Travis
County, Texas. In Cause No. D-1-DC-14-300630, Petitioner was
charged by indictment with three counts of obstruction or
retaliation, with four prior felony convictions alleged for
sentence enhancement purposes. Petitioner pleaded not guilty
to all three counts and waived his right to a trial by jury.
Following a bench trial, the trial court found Petitioner
guilty of all three counts and found the enhancement
paragraph true. On October 23, 2013, the trial court
sentenced Petitioner to 15 years' imprisonment on each
count to run concurrently.
12, 2015, the Third Court of Appeals of Texas affirmed
Petitioner's convictions. Brown v. State, No.
03-13-00760-CR, 2015 WL 2399816 (Tex. App. - Austin 2015,
pet. ref'd). On September 16, 2015, the Texas Court of
Criminal Appeals refused Petitioner's petition for
discretionary review. Brown v. State, PD-0729-15.
Petitioner has not filed an application for state writ of
habeas corpus challenging his convictions. Rather, Petitioner
filed a federal application for habeas corpus relief, which
was dismissed without prejudice for failure to exhaust his
state court remedies. Brown v. Davis, No.
A-15-CV-951-SS (W.D. Tex. Feb. 8, 2016) (DE #19-20). The
Fifth Circuit Court of Appeals denied Petitioner a
certificate of appealability. Brown v. Davis, No.
16-50481 (5th Cir. Jan. 23, 2018) (DE# 44).
Petitioner's Grounds for Relief
raises the following grounds for relief:
indictment was insufficient and invalid;
received ineffective assistance of trial counsel; and
state trial judge was not fair and impartial.