United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
LANE, UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT 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 is Petitioner’s “Motion Under 28 U.S.C.
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody.” Because Petitioner is in state
custody, not federal, his motion is construed as an
Application for Writ of Habeas Corpus under 28 U.S.C. §
2254. Petitioner, proceeding pro se, paid the full filing fee
for this case.
August 2, 2019, the Court ordered Petitioner to show cause
why this action should not be dismissed because he failed to
exhaust his state court remedies. Petitioner responds he does
not have to exhaust state court remedies because he filed a
motion pursuant to § 2255. 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
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.
also challenged his conviction in an application for habeas
corpus relief pursuant to 28 U.S.C. § 2254 in Cause No.
A-19-CV-169-LY. On July 9, 2019, the Court dismissed the
application without prejudice for failure to exhaust state
court remedies. Rather than returning to the state court to
properly file a state application for habeas corpus relief,
Petitioner returned to this Court by filing a Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C.
§ 2255. As the Court previously explained, Petitioner
cannot file a motion under § 2255, because he is not in
federal custody. The conviction he wishes to challenge is a
state conviction, not a federal conviction. Therefore, he may
only file an application for habeas corpus relief pursuant to
28 U.S.C. § 2254.
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 ...