United States District Court, W.D. Texas, El Paso Division
ALBERT WAYNE WARE, No. 103646 Petitioner,
EL PASO PSYCHIATRIC INSTITUTE, Respondent.
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA JUDGE
Albert Wayne Ware seeks relief from his mental health
competency commitment to the Respondent El Paso Psychiatric
Institute through a pro se "Petition for a Writ
of Habeas Corpus by a Person in State Custody" under 28
U.S.C. § 2254 (ECF No. 1). More specifically, Ware
challenges the 120-day commitment ordered by the 243rd
Judicial District Court of El Paso County, Texas, in cause
number 20170D01638. Ware claims his arrest was illegal
because he did not receive Miranda or any other
warnings, the trial court erred when it denied his oral
motions to dismiss, and he was wrongfully detained at the
county jail for six months before he was sent to the El Paso
Psychiatric Institute for the mental health competency
evaluation. Pet'r's Pet. at 6-7, ECF No. 1.
reasons outlined below, the Court concludes it should dismiss
Ware's petition. The Court additionally concludes it
should deny Ware a certificate of appealability.
habeas corpus is the appropriate means for seeking relief
from a mental health competency commitment. See Seling v.
Young, 531 U.S. 250 (2001) (involving a habeas corpus
challenge under 28 U.S.C. § 2254 to a civil judgment of
commitment under a state sex offender statute); Jackson
v. Foti, 670 F.2d 516 (5th Cir. Unit A 1980) (addressing
a federal habeas corpus challenge brought by an
"insanity acquittee" seeking release from
confinement in a state hospital). As a prerequisite to
obtaining § 2254 relief, however, a petitioner must
exhaust all remedies available in the state system. 28 U.S.C.
§ 2254(b)(1), (c); Fisher v. Texas, 169 F.3d
295, 302 (5th Cir. 1999). This exhaustion requirement
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." Picard v. Connor, 404 U.S. 270, 275
(1971) (quoting Wilwording v. Swenson, 404 U.S. 249,
250 (1971)). It also prevents "unnecessary conflict
between courts equally bound to guard and protect rights
secured by the Constitution." Ex Parte Royall,
117 U.S. 241, 251 (1886).
[Texas] legislature has set out a very specific process by
which the competency of a criminal defendant to stand trial
is determined. That process hinges on a determination of
competency or incompetency made under [Texas Code of Criminal
Procedure] article 46B.005, and the legislature has
explicitly barred any [interlocutory] appeal from such a
determination." Queen v. State, 212 S.W.3d 619,
622 (Tex. App. 2006); see also Tex. Crim. Proc. Code
Ann. § 46B.011 (West) ("Neither the state nor the
defendant is entitled to make an interlocutory appeal
relating to a determination or ruling under Article
46B.005."). Because "the legislature did not intend
to allow interlocutory appeals ... there is no ... adequate
remedy at law" from orders of temporary commitment made
after a determination of incompetence. Id. at 623.
Therefore, a petitioner must bring claims arising from mental
health competency commitment proceedings "by way of a
petition for writ of habeas corpus." Id.
(citing Tex. Code Crim. Proc. Ann. Art. 11.01 (West 2005)).
petitioner challenging mental health competency commitment
proceedings satisfies the exhaustion requirement when he
presents the substance of his habeas claims to the
state's highest criminal court in a procedurally proper
manner before filing a petition in federal court. Baldwin
v. Reese, 541 U.S. 27, 29 (2004); Morris v.
Dretke, 379 F.3d 199, 204 (5th Cir. 2004). In Texas, the
Court of Criminal Appeals is the highest court for criminal
matters. Richardson v. Procunier, 762 F.2d 429, 431
(5th Cir. 1985). A Texas prisoner may only satisfy the
exhaustion requirement by presenting both the factual and
legal substance of his claims to the Texas Court of Criminal
Appeals in a state habeas corpus proceeding pursuant to Texas
Code of Criminal Procedure article 11.07. See Tex.
Crim. Proc. Code Ann. art. 11.07; Queen, 212 S.W.3d
at 623; Tigner v. Cockrell, 264 F.3d 521, 526 (5th
Cir. 2001); Alexander v. Johnson, 163 F.3d 906,
908-09 (5th Cir. 1998).
does not allege in his petition, and the on-line records of
the Court of Criminal Appeals do not show,  that he presented
his claims to the Texas Court of Criminal Appeals prior to
seeking federal habeas corpus relief. Ware has also not shown
in his petition that the Court should excuse the exhaustion
requirement because he cannot obtain redress in a state court
or that the corrective process is so clearly deficient as to
render futile any effort by you to obtain relief See
Graham v. Johnson, 94 F.3d 958, 969 (5th Cir. 1996)
(citing Duckworth v. Serrano, 454 U.S. 1, 3(1981)).
federal court may raise sua sponte a
petitioner's failure to exhaust state law remedies and
apply that doctrine to bar federal litigation of
petitioner's claims until exhaustion is complete."
Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir.
1998) (citing Granberry v. Greer, 481 U.S. 129,
129-33 (1987)). And before taking this action, the court must
generally give a petitioner "notice and an opportunity
to respond to the exhaustion issue." Kurtzemann v.
Quarterman, 306 Fed.Appx. 205, 206 (5th Cir. 2009)
(citing Day v. McDonough, 547 U.S. 198, 209-10
(2006)). "This rule against no-notice sua
sponte dismissal is subject to two exceptions: if the
dismissal is without prejudice, or if the plaintiff has
alleged his best case." Brown v. Taylor, 829
F.3d 365, 370 (5th Cir. 2016) (citing Bazrowx v.
Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)).
Court ordered Ware to show cause, on or before March 15,
2018, why it should not dismiss his petition because he
failed to exhaust his remedies in the state system. Order,
Warning, and Advisory, ECF No. 4. The Court warned Ware that
if he failed to timely respond, it could, on its own
initiative and without further notice to him, dismiss his
cause for failure to prosecute or failure to comply with a
court order, pursuant to Federal Rule of Civil Procedure
41(b). Larson v. Scott, 157 F.3d 1030, 1031 (5th
Cir. 1998). The Court advised Ware that "[t]his
authority [under Rule 41(b)] flows from the Court's
inherent power to control its docket and prevent undue delays
in the disposition of pending cases." Boudwin v.
Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir.
1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626
this date, Ware has not responded to the Court's order.
And because Ware failed to respond, the Court concludes it
should dismiss his cause without prejudice. No. less drastic
sanction is available here, given that Ware has not complied
with the Court's order.
petitioner may not appeal a final order in a habeas corpus
proceeding "[u]nless a circuit justice or judge issues a
certificate of appealability." 28 U.S.C. §
2253(c)(1) (2012). To warrant a certificate as to claims that
the district court rejects solely on procedural grounds, the
petitioner must show both that "jurists of reason would
find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling." Slack v.
McDaniel,529 U.S. 473, 484 (2000). The Court finds that
jurists of ...