United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
LANE 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 are Petitioner's Application for Writ of Habeas
Corpus under 28 U.S.C. § 2254, Respondent's Answer,
Petitioner's “Motion for New Trial, ” and
Petitioner's “Notice of Appeal, ” which
appears to be a response to Respondent's answer.
Petitioner, proceeding pro se, paid the full filing fee for
this case. For the reasons set forth below, the undersigned
finds that Petitioner's application for writ of habeas
corpus should be dismissed without prejudice for failure to
exhaust state court remedies.
to Respondent, the Director has custody of Petitioner
pursuant to a judgment and sentence of the 428th Judicial
District Court of Hays County, Texas. In Cause No.
CR-16-0328, a jury found Petitioner guilty of enhanced theft
as a repeat offender and sentenced him to 18 years in prison.
Shortly following his sentencing, Petitioner requested
“original” habeas corpus relief from the Texas
Court of Criminal Appeals, but the court denied leave to file
the application in October 2016.
also filed a direct appeal, challenging the sufficiency of
the evidence. The Sixth Court of Appeals affirmed
Petitioner's conviction on May 19, 2017. Posada v.
State, No. 06-16-00184-CR, 2017 WL 3205580 (Tex. App. -
Texarkana 2017, pet. ref'd). On June 27, 2017, the court
of appeals modified the judgment in Petitioner's case
after Petitioner filed a motion for rehearing. Id.
The Texas Court of Criminal Appeals denied his petition for
discretionary review on October 18, 2017. Posada v.
State, No. PD-0654-17 (Tex. Crim. App. 2017).
moves to dismiss Petitioner's application because he
failed to exhaust his state court remedies. A fundamental
prerequisite to federal habeas corpus relief under Title 28
U.S.C. §2254 is the exhaustion of all claims in state
court prior to requesting federal collateral relief.
Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995),
cert. denied, 516 U.S. 1050 (1996). Section 2254(b)
(1) An 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:
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B) (i) there is an absence of available State corrective
process; or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
28 U.S.C. § 2254. This requirement is designed in the
interests of comity and federalism to give state courts the
initial opportunity to pass upon and correct errors of
federal law in a state prisoner's conviction. Picard
v. Connor, 404 U.S. 270, 275-76 (1971). The purpose and
policy underlying the exhaustion doctrine is to preserve the
role of the state courts in the application and enforcement
of federal law and prevent disruption of state criminal
proceedings. Rose v. Lundy, 455 U.S. 509, 518
(1982)(citing Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 490-91 (1973)).
petition under 28 U.S.C. § 2254 “must be dismissed
if state remedies have not been exhausted as to any of the
federal claims.” Castille v. Peoples, 489 U.S.
346, 349 (1989). The exhaustion doctrine “requires that
the Texas Court of Criminal Appeals be given an opportunity
to review and rule upon the petitioner's claim before he
resorts to the federal courts.” Richardson v.
Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Once a
federal claim has been fairly presented to the Texas Court of
Criminal Appeals, either through direct appeal or collateral
attack, the exhaustion requirement is satisfied. See
generally, Castille, 489 U.S. at 351. In order
to avoid piecemeal litigation, all grounds raised in a
federal application for writ of habeas corpus must first be
presented to the ...