Posada v. Davis

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT 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 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.

         On 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 remedies.

         DISCUSSION

         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).

         Petitioner 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.

         ANALYSIS

         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 ...