United States District Court, N.D. Texas, San Angelo Division
MEMORANDUM OPINION AND ORDER
WESLEY HENDRIX UNITED STATES DISTRICT JUDGE
amended 28 U.S.C. § 2254 habeas petition, Texas inmate
Austin Ray Carpenter, with the assistance of counsel,
challenges his state-court conviction and sentence. (Dkt. No.
7.) Respondent has filed her Answer with Brief in Support,
along with copies of Petitioner's state-court records
(Dkt. Nos. 16, 17), and Petitioner has filed his Reply (Dkt.
No. 21). Also pending before the Court are Petitioner's
Motion for Sanctions for Egregious Prosecutorial Misconduct
with Brief in Support (Dkt. Nos. 18, 19), Respondent's
Response in Opposition (Dkt. No. 23), Petitioner's
Supplemental Motion for Sanctions (Dkt. No. 24), and
Petitioner's First Supplemental Motion for Sanctions for
Egregious Prosecutorial Misconduct (Dkt. No. 26). After
considering the pleadings and relief sought by Petitioner,
the Court finds that the Petition should be dismissed without
prejudice for failure to exhaust state-court remedies, and
the motions for sanctions should be denied.
November 9, 2016, Petitioner pled guilty to aggravated
assault with a deadly weapon in cause number B-16-0348-SB in
the 119th District Court of Tom Green County, Texas. Under
the terms of the plea agreement, Petitioner received a
deferred adjudication of guilt and was placed on community
supervision for seven years. Petitioner waived his right to
appeal the order of deferred adjudication. He did not file a
direct appeal or a state application for writ of habeas
corpus challenging the deferred-adjudication proceedings.
1, 2017, the prosecution filed a Motion to Revoke Deferred
Adjudication Probation and to Proceed to Adjudicate Guilt,
followed by an amended motion with new allegations on
September 5, 2017. The trial court found that Petitioner had
violated the terms of his community supervision, revoked his
probation, and adjudicated him guilty of the offense of
aggravated assault with a deadly weapon, The trial court
assessed punishment of 13 years' confinement in the Texas
Department of Criminal Justice. Petitioner filed an appeal on
October 10, 2017, which remains pending. Petitioner has not
filed a petition for discretionary review (PDR) or state
application for writ of habeas corpus challenging the
adjudication of guilt.
Court understands Petitioner to raise the following grounds
for review in his amended federal petition:
(1) He was denied effective assistance of counsel, due
process of law, and equal protection of law at the initial
appearance and bond hearing held on January 6, 2016.
(2) He was actually and constructively denied his right to
effective assistance of counsel while he was held in pretrial
confinement for 11 months from January 6, 2016 until November
(3) He was denied his right to effective assistance of
counsel, due process, and equal protection during the
plea-bargaining process when the State demanded he surrender
his rights in order to gain his freedom from pretrial
(4) He was actually and constructively denied his right to
effective assistance of counsel, due process, equal
protection, and freedom from cruel and unusual punishment
when the State prosecuted and convicted him to 13 years in
prison without a jury trial and used his involuntary and
coerced confession and guilty plea against him.
(5) He was actually denied his right to effective assistance
of appellate counsel.
Petitioner's grounds one, two, and three are challenges
to proceedings leading up to and including his guilty plea
and the order of deferred adjudication placing him on
community supervision. Petitioner's grounds four and five
are challenges to the proceedings that resulted in his
13-year sentence and the still-pending appeal in state court.
Answer with Brief in Support, Respondent argues that
Petitioner's federal habeas petition should be dismissed
as unexhausted under 28 U.S.C. § 2254(b) because
Petitioner has never presented his claims to the Texas Court
of Criminal Appeals in a petition for discretionary review or
in a state application for writ of habeas corpus. Also,
Respondent argues that Petitioner's grounds one, two, and
three are time-barred under 28 U.S.C. § 2254(d).
Finally, Respondent argues that Petitioner's claims
raised in his grounds four and five are meritless.