United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
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. Before the
Court are Petitioner's Application for Habeas Corpus
Relief under 28 U.S.C. § 2254 (Document 1);
Respondent's Motion to Dismiss (Document 6); and
Petitioner's response (Document 8). Petitioner,
proceeding pro se, has been granted leave to proceed in forma
to Respondent, the Director has custody of Petitioner
pursuant to a judgment and sentence of the 147th Judicial
District Court of Travis County, Texas in cause number
D-1-DC-17-904069. Originally, Petitioner was charged by an
amended indictment with possessing a controlled substance in
an amount between 4 grams and 400 grams, with intent to
deliver, in cause number D-1-DC-17-301073. This indictment
was dismissed and refiled in D-1-DC-17-904069. The refiled
indictment alleged the same offense and added three
paragraphs for enhancement purposes. Pursuant to a plea
bargain agreement, the State agreed to waive Petitioner's
enhancement paragraphs, Petitioner entered a plea of guilty,
and the trial court sentenced Petitioner to five years in
prison on December 13, 2017.
filed a direct appeal. The Third Court of Appeals dismissed
the appeal for want of jurisdiction, because Petitioner
waived his right to appeal pursuant to the plea agreement.
Simms v. State, No. 03-18-00575-CR, 2018 WL 4781561
(Tex. App. - Austin Oct. 4, 2018). Petitioner's petition
for discretionary review was refused. Simms v.
State, No. PD-1173-18 (Tex. Crim. App. Dec. 5, 2018).
attempted to challenge his conviction through a state
application for habeas corpus relief. Petitioner filed his
application in cause number D-1-DC-17-301073, which is the
case that had been dismissed. Accordingly, the Texas Court of
Criminal Appeals dismissed the application on July 17, 2019.
Petitioner did not file a state application for habeas corpus
relief in cause number D-1-DC-17-904069, the case in which
Petitioner was convicted. If Petitioner wishes to challenge
his conviction in a state habeas corpus proceeding, he must
file his application in cause number D-1-DC-17-904069.
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 protect the rights of the applicant.
28 U.S.C. § 2254. This requirement is designed in the
interests of comity and federalism to give state courts the
initial opportunity to pass upon and correct errors of
federal law in a state prisoner's conviction. Picard
v. Connor, 404 U.S. 270, 275-76 (1971). The purpose and
policy underlying the exhaustion doctrine is to preserve the
role of the state courts in the application and enforcement
of federal law and prevent disruption of state criminal
proceedings. Rose v. Lundy, 455 U.S. 509, 518
(1982)(citing Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 490-91 (1973)).
petition under 28 U.S.C. § 2254 “must be dismissed
if state remedies have not been exhausted as to any of the
federal claims.” Castille v. Peoples, 489 U.S.
346, 349 (1989). The exhaustion doctrine “requires that
the Texas Court of Criminal Appeals be given an opportunity
to review and rule upon the petitioner's claim before he
resorts to the federal courts.” Richardson v.
Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Once a
federal claim has been fairly presented to the Texas Court of
Criminal Appeals, either through direct appeal or collateral
attack, the exhaustion requirement is satisfied. See
generally, Castille, 489 U.S. at 351. In order
to avoid piecemeal litigation, all grounds raised in a
federal application for writ of habeas corpus must first be
presented to the ...