United States District Court, S.D. Texas, Galveston Division
DERIN K. MUELLER, TDCJ #02028575, Petitioner,
LORIE DAVIS, Respondent.
MEMORANDUM OPINION AND ORDER DISMISSING PETITION
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
K. Mueller has filed a petition (Dkt. 1) for a federal writ
of habeas corpus challenging his state court conviction for
indecency with a child. On January 2, 2018, the Court ordered
Petitioner to show cause why his petition should not be
dismissed for failure to exhaust state court remedies (Dkt.
5). Petitioner has filed a response (Dkt. 6). After review
under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, and having considered the
pleadings and filings, the applicable law, and all matters of
record, the Court will dismiss the petition without prejudice
for the reasons explained below.
was convicted of indecency with a child in Brazoria County
cause numbers 66218, 66218-A, and 73524, and was sentenced to
eight years imprisonment on August 3, 2015. He currently is
incarcerated at the Telford Unit in New Boston, Texas. In his
petition (Dkt. 1) dated December 14, 2017, Mueller seeks a
federal writ of habeas corpus to challenge his conviction and
sentence. He brings claims that his guilty plea was
unconstitutional; that the prosecution withheld evidence;
that his due process rights were violated by an impermissibly
suggestive line-up; and that his attorney rendered
ineffective assistance of counsel.
states in his petition that he did not appeal his conviction
and has not filed an application for state habeas relief
(id. at 3-4). In response to the Court's order
to show cause why the petition should not be dismissed for
failure to exhaust state court remedies, he filed a response
(Dkt. 6) stating that he thought there was a time limit for
filing appeals and that his attorneys did not explain the
process to him. Mueller concedes that he has not presented
his claim Texas Court of Criminal Appeals
search of public court records confirms that Mueller has
filed neither an appeal nor a state habeas application.
Because the TCCA has not addressed the issues that he now
attempts to present in federal court, the pending federal
petition must be dismissed for reasons that follow.
EXHAUSTION OF REMEDIES
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, 61 F.3d 410, 414 (5th Cir. 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) (internal citation, quotation marks, and
alteration omitted). 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 n.3 (5th Cir.
exhaust his state remedies under the applicable statutory
framework, a habeas petitioner must fairly present “the
substance of his claim to the state courts.” Conner
v. Quarterman, 477 F.3d 287, 291-92 (5th Cir. 2007)
(internal quotation marks and citation omitted). 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
pleadings in this case plainly show that the TCCA has not yet
had an opportunity to address the issues raised in the
pending federal petition. Because this state process remains
available, Mueller does not satisfy any statutory exception
to the exhaustion doctrine. Comity requires this Court to
defer until the TCCA has addressed the petitioner's
claims. The pending federal habeas petition must be dismissed
as premature for lack of exhaustion.
corpus actions under 28 U.S.C. § 2254 or § 2255
require a certificate of appealability to proceed on appeal.
28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing
Section 2254 Cases requires a district court to issue or deny
a certificate of appealability when entering a final order
that is adverse to the petitioner.
certificate of appealability will not issue unless the
petitioner makes “a substantial showing of the denial
of a constitutional right, ” 28 U.S.C. §
2253(c)(2), which requires a petitioner to demonstrate
“‘that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.'” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). Under the controlling standard, a
petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336
(internal citation and quotation marks omitted). Where denial
of relief is based on procedural grounds, the petitioner must
show not only that “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right, ” but also that they
“would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529
U.S. at 484.
district court may deny a certificate of appealability,
sua sponte, without requiring further briefing or
argument. Alexander v. Johnson,211 F.3d 895, 898
(5th Cir. 2000). After careful review of the pleadings and
the applicable law, the Court concludes that reasonable
jurists would not find its assessment of the claims debatable
or wrong. Because the petitioner does not allege facts
showing that ...