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James v. Davis

United States District Court, N.D. Texas, Dallas Division

May 1, 2019

CHRISTOPHER DEWAYNE JAMES, Petitioner,
v.
LORIE DAVIS, Director TDCJ-CID Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD, UNITED STATESAMAGISTRATE JUDGE

         Petitioner Christopher Dewayne James, a Texas prisoner, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The District Court referred the resulting civil action to the United States magistrate judge, pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, the petition should be denied.

         I.

         In 2016, Petitioner pleaded guilty to aggravated robbery and was sentenced to eight years imprisonment. State of Texas v. Christopher Dewayne James, No. F-1576759-U (291st Dist. Ct., Dallas County, Tex., December 19, 2016). (ECF No. 16-2 at 12). He did not file an appeal. (ECF No. 3 at 3). Thereafter, Petitioner filed a state habeas petition, Ex parte James, No. 87, 347-01, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court without a hearing. (ECF No. 16-1).

         Petitioner then filed the instant § 2254 petition, in which he argues:

(1) The State failed to explain why his judgment and plea agreement state the sentence “shall run concurrent.”
(2) His trial counsel provided ineffective assistance at trial by:
a. incorrectly advising Petitioner that he would be returned to federal custody after the state proceedings;
b. failing to adequately investigate whether Petitioner's state and federal sentences would be served concurrently;
c. incorrectly advising Petitioner that his state and federal sentences would be served concurrently.

         II.

         1. Exhaustion Requirement

         Petitioner's claims that the State failed to explain why the judgment and plea agreement state his sentence “shall run concurrent” and that his counsel incorrectly advised him that he would be returned to federal custody after the state proceedings (claims 1 and 2(a)) are unexhausted and procedurally-barred.

         A petitioner must fully exhaust state remedies by fairly presenting the factual and legal basis of any claim to the highest state court for review before seeking federal habeas relief. See 28 U.S.C. § 2254(b); Johnson v. Cain, 712 F.3d 227, 231 (5th Cir. 2013). A Texas prisoner may satisfy this requirement by presenting both the factual and legal substance of his claims to the Court of Criminal Appeals in an application for a state writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure. Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). Failure to exhaust is generally a procedural bar to federal habeas review, although the federal court may excuse the bar if the petitioner can demonstrate either cause and prejudice for the default or that the court's failure to consider the claims will result in a fundamental miscarriage of justice. Ries v. Quarterman, 522 F.3d 517, 523-24 (5th Cir. 2008) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

         Petitioner did not appeal his conviction, nor did he present in his state habeas application his claims that the State failed to explain why the judgment and plea agreement state his sentence “shall run concurrent” and that his counsel incorrectly advised him that he would be returned to federal custody after the state proceedings. See ECF No. 16-2 at 16-33. He therefore failed to exhaust these claims.

         Further because these claims are not substantially equivalent to any claim presented to the Court of Criminal Appeals, they do not meet the “fairly presented” requirement and are not properly exhausted. See Whitehead, 157 F.3d at 387. Petitioner's failure to exhaust state court remedies constitutes a procedural default that bars this Court from considering the claims. Morris v. Drekte, 413 F.3d 484, 491-92 (5th Cir. 2005); Ries, 522 F.3d at 523-24.

         Petitioner does not address the issue of exhaustion in his habeas petition or the memorandum in support of his petition. (See ECF Nos. 3, 4). He has not alleged or demonstrated cause for the default and actual prejudice, or that a fundamental miscarriage of justice would occur if the Court were to refuse to consider his claims. See Coleman, 501 U.S. at 750. Accordingly, claims 1 and 2(a) afford no relief to Petitioner.

         2. AEDPA ...


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