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Pryor v. Davis

United States District Court, W.D. Texas, San Antonio Division

July 31, 2019

DONNA MARIE PRYOR, TDCJ No. 01859201, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER ON REMAND

          ORLANDO L. GARCIA, Chief United States District Judge

         In December 2017, the Court dismissed Petitioner Donna Marie Pryor's federal petition for a writ of habeas corpus challenging her state court conviction for driving while intoxicated. (ECF No. 17). On appeal, the Fifth Circuit granted Petitioner a certificate of appealability (COA) after determining that jurists of reason would debate this Court's implicit procedural ruling not to permit Petitioner to amend her federal petition with a claim apparently embedded in her reply brief (ECF No. 16). Pryor v. Davis, 739 Fed.Appx. 268, 269 (5th Cir. 2018) (unpublished); (ECF No. 24). As a result, the Fifth Circuit vacated, in part, this Court's judgment and remanded for further consideration of Petitioner's amended claim-namely, whether the prosecution "violated her due process rights by urging the jury to impose a harsh prison sentence based on Texas's parole and good-time credit procedures." Id.

         Currently before the Court on this issue are Respondent's Amended Answer (ECF No. 29) and Petitioner's Reply (ECF No. 30). In her Amended Answer, Respondent contends that Petitioner's amended allegation should be dismissed with prejudice as procedurally defaulted and time-barred. Petitioner does not rebut these arguments in her reply, instead briefing only the merits of her amended allegation. Having carefully considered the record and pleadings submitted by both parties, the Court agrees with Respondent that Petitioner's amended allegation has not been presented to the highest state court for review and is thus unexhausted and procedurally barred from federal habeas review. The Court also agrees that the allegation is untimely and barred by the one-year statute of limitations embodied in 28 U.S.C. § 2244(d)(1). Thus, the Court concludes Petitioner is not entitled to federal habeas corpus relief or a COA.

         I. Background

         As set forth in this Court's previous opinion, Petitioner was convicted of felony driving while intoxicated (enhanced) in May 2013 and was sentenced to ninety-nine years of imprisonment. State v. Pryor, No. CR2012-208 (207th Dist. Ct., Comal Cnty., Tex. May 15, 2013) (ECF No. 15-1 at 72). Her conviction and sentence were affirmed on direct appeal, and the Texas Court of Criminal Appeals (TCCA) refused her petition for discretionary review (PDR) on November 4, 2015. Pryor v. State, No. 03-13-00347-CR, 2015 WL 2066228, at *1 (Tex. App.-Austin, May 1, 2015, pet. ref d) (ECF No. 15-8); Pryor v. State, No. PD-1005-15 (Tex. Crim. App.) (ECF No. 15-12). On September 19, 2016, Petitioner filed a state habeas corpus application challenging the constitutionality of her state court conviction and sentence, which the TCCA later denied without written order on February 8, 2017, based on the findings of the trial court without a hearing. Ex parte Pryor, No. 86, 000-01 (Tex. Crim. App.) (ECF Nos. 15-13 at 23; 15-15).

         Petitioner initiated the instant federal proceedings on May 23, 2017, when she placed a form petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 in the prison mailing system. (ECF No. 1 at 10). In the petition, Petitioner alleged that: (1) her trial counsel was ineffective in failing to object to her ninety-nine year sentence on the grounds that it violated the Eighth Amendment's prohibition on cruel and unusual punishment, and (2) she was denied due process of law under the Fourteenth Amendment when the state appellate court conducted an incomplete review of the facts and law. Following Respondent's Answer (ECF No. 14), Petitioner filed a Reply on October 26, 2017, wherein she explicitly withdrew her second claim for relief because the claim was unexhausted and procedurally barred. (ECF No. 16 at 6, 21). As a result, the Court considered only Petitioner's claim of ineffective assistance when it dismissed her § 2254 petition on the merits on December 12, 2017. (ECF No. 17).

         Petitioner appealed this decision to the Fifth Circuit, arguing, in part, that the district court implicitly (and erroneously) rejected her attempt to amend her § 2254 petition with several new claims for relief brought forth in her reply brief. In an unpublished opinion issued October 2, 2018, the Fifth Circuit determined that this Court had abused its discretion by not liberally construing Petitioner's reply as a motion to amend, but found that only one of the new claims-the due process allegation mentioned previously-stated a valid constitutional claim for relief. Pryor, 739 Fed.Appx. at 268-269. Thus, the Fifth Circuit granted a COA on the district court's "implicit procedural ruling" that prevented the consideration of Petitioner's due process claim and remanded for further consideration of the amended allegation. Id. Supplemental briefing on this issue has now been provided by both parties (ECF Nos. 29, 30) and the case is ripe for adjudication.[1]

         II. Analysis

         A. Exhaustion and Procedural Default

          Before seeking review in federal court, a habeas corpus petitioner must first present his claims in state court and exhaust all state court remedies through proper adjudication on the merits. See 28 U.S.C. § 2254(b)(1)(A) (stating that habeas corpus relief may not be granted "unless it appears that... the applicant has exhausted the remedies available in the courts of the State."). The exhaustion requirement is satisfied if the substance of the federal habeas claim was presented to the highest state court in a procedurally proper manner. Baldwin v. Reese, 541 U.S. 27, 29-32 (2004); Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002). In Texas, the highest state court for criminal matters is the TCCA, and a prisoner must present the substance of his claims to the TCCA in either a PDR or an application for writ of habeas corpus under Texas Code of Criminal Procedure Article 11.07. Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998); Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986).

         Respondent contends that Petitioner's amended due process allegation is unexhausted and thus procedurally barred from federal habeas corpus relief. (ECF No. 29 at 8-12). Indeed, the record confirms Petitioner has not fairly presented her amended allegation to the state court in either a PDR or state habeas application prior to seeking federal habeas corpus review. (ECF Nos. 15-11; 15-13). Because the allegation is being presented for the first time in this federal habeas proceeding, it is unexhausted under § 2254(b) and procedurally barred from federal habeas review.

         "A procedural default... occurs when a prisoner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citation and internal quotation marks omitted). Petitioner failed to exhaust state court remedies with regard to the amended claim raised for the first time in her original reply brief (ECF No. 16) before this Court. Should this Court now require her to return to state court to satisfy the exhaustion requirement, the TCCA would find the claim procedurally barred under the abuse of the writ doctrine found in Article 11.07 § 4 of the Texas Code of Criminal Procedure. Because Texas would likely bar another habeas corpus application by Petitioner, she has committed a procedural default that is sufficient to bar federal habeas corpus review. See, e.g., Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir. 2004) (holding a petitioner procedurally defaulted by failing to "fairly present" a claim to the state courts in his state habeas corpus application); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir. 2002) (holding unexhausted claims were procedurally barred); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir. 1999) (same).

         Consequently, Petitioner is precluded from federal habeas review of these claims unless she can show cause for the default and resulting prejudice, or demonstrate that the Court's failure to consider her amended claim will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). Petitioner has made no attempt to demonstrate cause and prejudice for her failure to raise these claims in state court. Nor has she made any attempt to show the Court's dismissal of these claims will result in a "fundamental miscarriage of justice." Thus, circuit precedent compels the denial of Petitioner's amended claim as procedurally defaulted.

         B. The ...


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