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Posada v. Davis

United States District Court, W.D. Texas, Austin Division

May 9, 2019

LEON POSADA
v.
LORIE DAVIS

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE UNITED STATES MAGISTRATE JUDGE

         The 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.

         Before 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.

         DISCUSSION

         According 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.

         Petitioner 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).

         ANALYSIS

         Respondent 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) provides:

(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)).

         A 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 ...


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