United States District Court, W.D. Texas, San Antonio Division
STANLEY FOSTER BAKER, TDCJ No. 02085771, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
ORDER OF DISMISSAL
RODRIGUEZ, UNITED STATES DISTRICT JUDGE
the Court are pro se Petitioner Stanley Foster
Baker's Amended Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 5), Respondent
Lorie Davis's Motion to Dismiss for Failure to Exhaust
State Court Remedies (ECF No. 13), and Petitioner's Reply
thereto (ECF No. 18). For the reasons set forth below,
Respondent's motion to dismiss is granted and
Petitioner's federal habeas corpus petition is dismissed
without prejudice for failure to exhaust available state
appellate remedies. Petitioner is also denied a certificate
2016, Petitioner was convicted of one count of continuous
sexual abuse of a child and one count of indecency with a
child by sexual contact. He was sentenced to life
imprisonment on the first count and to twenty years of
imprisonment on the second. State v. Baker, No.
15-1755-CR (2nd 25th Dist. Ct., Guadalupe Cnty., Tex. July
20, 2016); (ECF No. 14-13 at 139-40). His convictions and
sentences were affirmed on direct appeal, and the Texas Court
of Criminal Appeals refused his petition for discretionary
review (PDR) on September 12, 2018. Baker v. State,
No. 04-16-00559-CR (Tex. App.-San Antonio, Mar. 21, 2018,
pet. ref'd) (ECF No. 14-6); Baker v. State, No.
PD-0432-18 (Tex. Crim. App.) (ECF No. 14-10).
records indicate Petitioner has not yet filed an application
for state habeas corpus relief with the Texas Court of
Criminal Appeals. (ECF No. 13-1). Instead, Petitioner
initiated the instant federal proceedings on February 11,
2019, when he placed a letter appearing to challenge his 2016
state court convictions in the prison mailing system. (ECF
No. 1). The Court construed the letter as an application for
federal habeas corpus relief pursuant to 28 U.S.C. §
2254 and ordered Petitioner to either withdraw the
application or to clarify his intentions by filing an amended
§ 2254 application on the forms provided. (ECF No. 2).
In the amended application that followed (ECF No. 5),
Petitioner raises several allegations, including: (1) a due
process violation when his request for an attorney during his
May 27, 2015, police interrogation was deleted from the
audio/video taken that day; (2) trial court error for
removing him from the courtroom, forcing him to use unethical
trial counsel, failing to issue complete jury instructions,
and failing to hold a Jackson v. Denno hearing; (3)
he was denied the effective assistance of counsel on appeal;
(4) his statements to police were involuntary and their
admission into evidence violated his rights under Miranda
v. Arizona, 384 U.S. 436 (1966); and (5) he was denied
the effective assistance of trial counsel.
28 U.S.C. § 2254(b)(1)(A), habeas corpus relief may not
be granted “unless it appears that the applicant has
exhausted the remedies available in the courts of the
State.” Under this exhaustion doctrine, a state
prisoner must exhaust available state remedies, thereby
giving the State the opportunity to pass upon and correct
alleged violations of its prisoners' federal rights,
before seeking federal habeas corpus relief. Baldwin v.
Reese, 541 U.S. 27, 29 (2004); Henry v.
Cockrell, 327 F.3d 429, 432 (5th Cir. 2003)
(“Absent special circumstances, a federal habeas
petitioner must exhaust his state remedies by pressing his
claims in state court before he may seek federal habeas
relief.”). To exhaust state remedies, a Texas prisoner
must present both the factual and legal substance of a claim
in a procedurally proper manner to the Texas Court of
Criminal Appeals in either a PDR or an application for writ
of habeas corpus under Texas Code of Criminal Procedure
11.07. See Bautista v. McCotter, 793 F.2d 109, 110
(5th Cir. 1986).
asserts that he filed a PDR in the Texas Court of Criminal
Appeals, and, as such, he gave the state court a full
opportunity to review his claims. Petitioner's assertion
is incorrect, however, because defendants do not properly
exhaust their state remedies by presenting a claim for the
first time in a PDR. Myers v. Collins, 919 F.2d
1074, 1077 (5th Cir. 1990) (finding the exhaustion
requirement is not satisfied through direct appeal by raising
a claim “in the Texas Court of Criminal Appeals without
first obtaining review by an intermediate appellate
court.”). This is because doing so would typically
leave the Texas Court of Criminal Appeals without an
appellate decision to review. See, e.g., Ex parte
Queen, 877 S.W.2d 752, 755 n. 4 (Tex. Crim. App. 1994).
Thus, claims presented “for the first and only time in
a petition for discretionary review” do not satisfy the
exhaustion doctrine. Myers, 919 F.2d at 1077;
see also Flores v. Johnson, 957 F.Supp. 893, 903
(W.D. Tex. 1997) (“The presentation of claims for the
first time on discretionary review to the state's highest
court does not constitute ‘fair presentation' for
instant case, while Petitioner arguably presented some of the
same allegations to the Texas Court of Criminal Appeals via
his PDR, he did not raise the majority of these claims on
direct appeal nor has he filed a state habeas application
raising the claims. Petitioner thus has not presented the
claims raised in his § 2254 petition in a procedurally
proper manner to the state's highest court. He also fails
to show any exception to the exhaustion requirement applies.
See Mercadel v. Cain, 179 F.3d 271, 277 (5th Cir.
1999) (noting futility and/or lack of an available remedy in
state court as recognized exceptions to the exhaustion
doctrine). Because the majority of the claims raised in his
federal petition have not been “fairly presented”
to the Texas Court of Criminal Appeals, Petitioner's
habeas claims will be dismissed without prejudice for failure
to exhaust state court remedies.
Governing Habeas Corpus Proceedings states a habeas corpus
petition may be summarily dismissed “[i]f it plainly
appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief
in the district court.” Because Petitioner has not
satisfied the preconditions for review set forth by §
2254, dismissal of his amended petition is warranted so that
he may properly pursue his state court remedies.
IT IS HEREBY ORDERED that:
Respondent Lorie Davis's Motion to Dismiss for Failure to
Exhaust State Court Remedies (ECF No. 13) is
Petitioner Stanley Foster Baker's Amended Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF
No. 5) is DISMISSED WITHOUT ...