Agnew v. Davis

          MEMORANDUM OPINION AND ORDER

          JOHN MCBYDE UNITED STATES DISTRICT JUDGE

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Norman L. Agnew, a state prisoner incarcerated in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ) against Lorie Davis, Director of TDCJ, respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be dismissed without prejudice, in part, on exhaustion grounds, and denied, in part.

         I. Factual and Procedural History

         On December 11, 2017, in Tarrant County, Texas, petitioner pleaded guilty, pursuant to plea agreements, to injury to a child in No. 1429034D; theft of a firearm in No. 1434386D; unlawful possession of a firearm in No. 1434387D; and bail jumping in No. 1475324D. (Pet. 2-3, doc. 3.^[1]) He was sentenced in accordance with the plea agreements to 15 years' confinement in each case, the sentences to run concurrently. (Resp't's Preliminary Answer Ex. A, doc. 12-1.) Petitioner did not appeal his convictions or sentences, but did file a state habeas-corpus application raising one or more of the claims presented in this federal petition, which was denied by the Texas Court of Criminal Appeals without written order or hearing on the findings of the trial court. (Action Taken, doc. 27-1.)

         II. Issues

         Petitioner's grounds for federal habeas relief are construed as follows:

(1) the Texas Board of Pardons and Paroles is using his two prior 2008 aggravated assault and 1998 arson convictions to deny his release to mandatory supervision in violation of the double jeopardy and due process clauses of the Fifth Amendment and the Ninth Amendment; and

(2) his sentence(s) were wrongfully enhanced in violation of the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).

(Pet. 6, 11-14, doc. 3; Consol. Pet.6-7, doc. I.^[2])

         Petitioner seeks a mandatory release date and requests that his sentence (s) be overturned. (Pet. 12, 14, doc. 3; Consol. Pet. 7, doc. 1.)

         III. Exhaustion

         Respondent asserts that petitioner's claims are wholly unexhausted, save for his second claim as it pertains to his 15-year sentence for theft of a firearm in No. 1434386D. (Resp't's Supp. Answer 6, doc. 29.) A petitioner must fully exhaust state court remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). This entails submitting the factual and legal basis of any claim to the highest available state court for review. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). Thus, a Texas prisoner must present his claims to the Texas Court of Criminal Appeals, the state's highest criminal court, in a petition for discretionary review or an application for writ of habeas corpus. Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). The exhaustion requirement is "not satisfied if the petitioner presents new legal theories or factual claims in his federal habeas petition." Anderson v. Johnson, 338 F.3d 381, 386 (5th Cir. 2003).

         Having reviewed the state court records, the court agrees that petitioner's claims under ground (1), enumerated above, raised for the first time in this federal habeas petition are wholly unexhausted for purposes § 2254(b)(1)(A). The exhaustion requirement applies to prisoners challenging a denial of release to mandatory supervision. See Hess v. Stephens, No. 4:13-CV-093- A, 2013 WL 3204373, at *1 (N.D.Tex. June 24, 2013); Dodson v. Cockrell, No. 4:02-CV-560-Y, 2002 WL 31495992, at *2 (N.D.Tex. Nov. 5, 2002).

         A review of the records also reveals that petitioner's claim under ground (2) as it relates to petitioner's 15-year sentences in No. 1429034D for injury to child, No. 1434387D for unlawful possession of a firearm, and No. 1475324D for bail jumping raised for the first time in this federal petition is also wholly unexhausted for purposes § 2254(b)(1)(A). Although petitioner filed a state habeas application raising his claim under Apprendi, he only challenged his 15-year sentence in No. 1434386D for theft of a firearm. (SHR 24-25, doc. ...