Presley v. Garcia et al, No. 4:2014cv02664 - Document 5 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER dismissing without prejudice, granting 2 APPLICATION to Proceed In Forma Pauperis, denying as moot 3 APPLICATION to Proceed In Forma Pauperis. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Presley v. Garcia et al Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DEMETRI RAPHAEL PRESLEY, SPN NO. 01689372, § § § § § § § § § § Petitioner, v. SHERIFF ADRIAN GARCIA, Respondent. CIVIL ACTION NO. H-14-2664 MEMORANDUM OPINION AND ORDER Demetri Raphael Presley, an inmate of the Harris County Jail, has submitted a Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) challenging the validity of his incarceration pursuant indictments out Texas. of to several pending the 183rd District Court state criminal of Harris County, This suit will be dismissed for failure to exhaust state court remedies. I. Presley against seeks him. He Claims and Case status dismissal claims that of he charges was that have originally attempted robbery of his girlfriend but that the been filed charged with incident was merely a scuffle over some items he had purchased at a smoke shop. The charge was later changed to domestic violence. Presley complains that his attorney has been ineffective by failing to investigate the incident or seeking dismissal of the charges. He Dockets.Justia.com also claims that his attorney has not given him good legal advice regarding a plea offer. The records of the Harris County District Clerk's Office indicate that Presley is awaiting trial after having been charged with theft, assault of a family member with bodily injury, delivery of a controlled substance. the Harris County District and See Website of the Office of Clerk, www.hcdistrictclerk.com. Presley's next hearing in the Harris County state district court is November 17, 2014. Id. II. Anal.ysis If Presley were challenging a final state court conviction, his petition would be brought under 28 U. S. C. § 2254, which contains provisions requiring exhaustion of state court remedies before seeking relief in federal court. F.3d 409, 419-20 (5th Cir. 1997). Nobles v. Under 28 U.S.C. § Johnson, 127 2254 (b) (1) (A), a habeas petitioner must exhaust available state remedies before seeking relief in the federal courts. F.3d 409, 419-420 (5th Cir. 1997). 567 F.3d 146, 148 (5th Cir. 2009) See Nobles v. Johnson, 127 See also Wion v. Quarterman, ("Before pursuing federal habeas relief, a petitioner is required to exhaust all state procedures for relief."), citing Orman v. Cain, 228 F. 3d 616, 619-20 (5th Cir. 2000) . To exhaust his state remedies, the petitioner must fairly present the substance of his claims to the state courts, and the claims must have been fairly presented to the highest court of the state. Nobles, at 420, citing Picard v. -2- Connor, 92 S. Ct. 509, 512-13 (1971); Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990) . The exhaustion requirement comity. Coleman v. Thompson, 111 S. Ct. 2546, 2555 (1991); Ries v. Quarterman, Quarterman 1 522 F.3d 517 491 F.3d 213 523 1 220 1 is based on the precept of (5th Cir. 2008) (5th Cir. citing Moore v. 2007). 1 Federal courts follow this principle to afford state courts the first opportunity to address and correct the alleged violations of a petitioner1s federal rights. Id. Therefore, a habeas petitioner must go through the state court system before presenting his constitutional claims in a federal petition. 1528 1 See Rhines v. Weber l 128 S. Ct. 1533 (2005). In this proceeding Presley is challenging a pending trial proceeding, not a final conviction. Pretrial petitions properly brought before the federal courts under 28 U.S.C. Stringer v. Williams Dickerson v. l 161 F.3d 259 1 State of La., 262 (5th Cir. 816 F.2d 220, 224 § are 2241. 1998), citing (5th Cir. 1987). Although section 2241 does not contain explicit language requiring exhaustion of available remedies, the United States Court of Appeals for the Fifth Circuit has placed such a requirement on federal challenges of pretrial proceedings. 224. being Dickerson, 816 F. 2d at There is no record of an appeal or writ of habeas corpus filed in Presley's www.hcdistrictclerk.com. state criminal proceeding. See Absent special circumstances, which are not present in this action, a federal petition for a writ of habeas corpus may not be filed until state remedies have been exhausted. -3 - Dickerson, at 225-27; Brown v. Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976). Accordingly, this action will be dismissed without prejudice for failure of the petitioner to exhaust all available remedies on all his claims to the state's highest court of criminal jurisdiction. Should Presley file a notice of appeal, the court denies the issuance of a Certificate of Appealability for the reasons stated in this Memorandum Opinion and Order. See 28 U.S.C. § 2253; Stringer, 161 F.3d at 262; Whitehead, 157 F.3d at 386; Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997). III. Conclusion The court ORDERS the following: 1. Demetri Presley's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) is DISMISSED WITHOUT PREJUDICE for his failure to exhaust state court remedies. 2. Presley's Application to Proceed In Forma Pauperis (Docket Entry No.2) is GRANTED. 3. Presley's subsequent Application to Proceed In District Court Without Prepaying Fees or Costs (Docket Entry No.3) is DENIED as MOOT. 4. A certificate of appealability is DENIED. SIGNED at Houston, Texas, on this 7th day of October, 2014. UNITED STATES DISTRICT JUDGE -4-
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