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Simms v. Davis

United States District Court, W.D. Texas, Austin Division

December 9, 2019





         The 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 pauperis.


         According 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.

         Petitioner 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).

         Petitioner 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.


         A 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)).

         A 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 ...

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