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Carpenter v. Davis

United States District Court, N.D. Texas, San Angelo Division

October 10, 2019

AUSTIN RAY CARPENTER, Petitioner,
v.
LORIE DAVIS-DIRECTOR TDCJ-CID, Respondent.

          MEMORANDUM OPINION AND ORDER

          JAMES WESLEY HENDRIX UNITED STATES DISTRICT JUDGE

         In his 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.

         1. Background

         On 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.

         On May 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.

         The 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 10, 2016.
(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 incarceration.
(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.

         In sum, 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.

         In her 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.

         2. ...


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