United States District Court, N.D. Texas, Dallas Division
LINDSAY UNITED STATES DISTRICT JUDGE
case was referred to United States Magistrate Rebecca
Rutherford, who entered the Findings, Conclusions and
Recommendation of the United States Magistrate Judge
(“Report”) on March 2, 2018, recommending that
the court dismiss with prejudice this habeas action.
Specifically, the magistrate determined that: (1)
Petitioner's first claim that the state court abused its
discretion in denying his state habeas petition is not
cognizable as a claim for federal habeas relief; (2)
Petitioner's second and third claims based on ineffective
assistance of counsel are procedurally barred; and (3)
Petitioner has not shown with respect to his fourth claim
that the state court's denial of his motion for new trial
objections to the Report were filed, although Petitioner was
granted an extension to May 9, 2018, to file his objections.
Because the basis for the magistrate judge's
determination that Petitioner's second and third habeas
claims is not readily apparent, the court supplements herein
this finding and conclusion by the magistrate judge.
Dismissal with prejudice of a petitioner's unexhausted
federal habeas claims is appropriate when it is clear that
the claims are procedurally barred under state law. Gray
v. Netherland, 518 U.S. 152, 161 (1996) (citation
omitted). When it is clear that a petitioner's
unexhausted federal claims would be dismissed for abuse of
the writ if presented in a subsequent state writ application,
they are procedurally barred in federal court. Fuller v.
Johnson, 158 F.3d 903, 905-06 (5th Cir. 1998). Citation
for abuse of the writ by the Texas Court of Criminal Appeals
constitutes a procedural default that bars federal habeas
review of the merits of a habeas petitioner's claims.
Fearance v. Scott, 56 F.3d 633 (5th Cir. 1995). If
Petitioner were to file another state writ application that
included his unexhausted ineffective assistance of counsel
claims, it would be denied under Texas's
abuse-of-the-writ doctrine because he was required, but
failed, to include all grounds for relief in his first state
petition, including the ineffective assistance of counsel
claims that he now asserts in this action, and Petitioner has
not shown cause for the failure to raise these claims in his
first state habeas petition. Nobles v. Johnson, 127
F.3d 409, 423 (5th Cir. 1997). Thus, Petitioner's
ineffective assistance of counsel claims are procedurally
barred from federal habeas review and will be dismissed with
prejudice as recommended by the magistrate judge.
after carefully reviewing the pleadings, file, record in this
case, and Report, the court determines that the findings and
conclusions of the magistrate judge, are correct,
accepts them as those of the court, and
dismisses with prejudice this habeas action
for the reasons stated in the magistrate judge's Report
as supplemented by this order.
the record in this case and pursuant to Federal Rule of
Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§§ 2254 and 2255 proceedings, and 28 U.S.C. §
2253(c), the court denies a certificate of
appealability.[*]The court determines that Petitioner
has failed to show: (1) that reasonable jurists would find
this court's “assessment of the constitutional
claims debatable or wrong;” or (2) that reasonable
jurists would find “it debatable whether the petition
states a valid claim of the denial of a constitutional
right” and “debatable whether [this court] was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). In support of this
determination, the court accepts and incorporates by
reference the magistrate judge's Report filed in this
case. In the event that Petitioner files a notice of appeal,
he must pay the $505 appellate filing fee or submit a motion
to proceed in forma pauperis on appeal.
is so ordered.
Rule 11 of the Rules Governing §§ 2254 and 2255
Cases provides as follows:
(a)Certificate of Appealability.
The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant. Before entering the final order, the court may
direct the parties to submit arguments on whether a
certificate should issue. If the court issues a
certificate, the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C.
§ 2253(c)(2). If the court denies a certificate, the
parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22. A motion to reconsider a denial
does not extend the time to appeal.
(b)Time to Appeal. Federal Rule of
Appellate Procedure 4(a) governs the time to appeal an