Barley v. Stephens, No. 4:2015cv00030 - Document 20 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting 12 MOTION for Summary Judgment with Brief in Support, dismissing without prejudice 1 Petition for Writ of Habeas Corpus, denying 2 MOTION to Hold in Abeyance. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Barley v. Stephens Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CHARLES EDWARD BARLEY, TDCJ NO. 1818237, Petitioner, v. WILLIAM STEPHENS, Director Texas Department of Criminal Justice, Respondent. § § § § § § § § § § § § CIVIL ACTION NO. H-15-0030 MEMORANDUM OPINION AND ORDER State inmate Charles Edward Barley (TDCJ No. 1818237) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody under conviction. 28 U.S.C. (Docket § 2254, Entry No.1) challenging The a state respondent has court filed Respondent's Motion for Summary Judgment with Brief in Support, arguing that the petition must be dismissed because Barley has not yet exhausted available state court remedies as required before seeking federal habeas review. (Docket Entry No. 12) filed Petitioner's Response with Supporting Brief. No. 18) Barley has (Docket Entry The court will grant the respondent's motion and dismiss this action for the reasons explained below. I. Procedural History Barley was charged with murder in case number 11-05-13820. After a jury in the 506th District Court of Waller County, Texas, Dockets.Justia.com found Barley guilty as charged, he was sentenced to fifty years' imprisonment. Barley's murder conviction was affirmed in an unpublished opinion. Barley v. State, No. 01-12-01002-CR (Tex. App.-Hous. [1st Dist.] Oct. 29, 2013, no pet.). denied on January 9, 2014. Barley's motion for rehearing was Because Barley did not file a petition for discretionary review with the Texas Court of Criminal Appeals, his conviction became February 9, 2014. final thirty days later, on or about See Tex. R. App. P. 68.2(a). On October 15, 2014, Barley filed a state application for a writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. The Texas Court of Criminal Appeals dismissed that petition on December 17, 2014, because it did not comply with state procedural rules. On December 23, 2014, Barley filed a second state application for a writ of habeas corpus. On the same day Barley filed the pending petition for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. Noting that Barley's second state habeas corpus application remains pending the respondent argues that Barley has failed to exhaust available state court remedies and that his federal petition must be dismissed as premature. II. Under the governing Discussion federal habeas corpus statutes "[a] n application for a writ of habeas corpus on behalf of a person in -2- custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." § 2254 (b) (1) (A) . 28 U.S.C. Thus, a petitioner "must exhaust all available state remedies before he may obtain federal habeas corpus relief." Sones v. Hargett, 61 F.3d 410, 414 (5th Cir. 1995). requirement "is federal-state not jurisdictional, comity designed to but give The exhaustion reflects the a State policy an of initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." 490-91 (5th Cir. 2006) 386 (5th Cir. 2003) Moore v. Quarterman, 454 F.3d 484, (quoting Anderson v. Johnson, 338 F.3d 382, (internal citations and quotations omitted)). Exceptions exist only where there is an absence of an available state corrective process or where circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254 (b) (1) (B). To exhaust his state remedies under the applicable statutory framework, a habeas petitioner must fairly present "the substance of his claim to the state courts." Moore, 454 F.3d at 491 (quoting Vasquez v. Hillery, 106 S. Ct. 617, 620 (1986)). A federal habeas petitioner shall not be deemed to have exhausted the remedies available in the state courts "if he has the right under the law of the State presented." to raise, 28 U.S.C. by any § available 2254(c). the question In Texas a criminal defendant may challenge a conviction in two ways: -3- procedure, (1) the petitioner may file a direct appeal followed, if necessary, by a petition for discretionary review in the Texas Court of Criminal Appeals; and/or (2) he may file a Article 11. 07 convicting of court, petition for a the Texas which is Code writ of habeas of Criminal transmitted to corpus under Procedure the Texas in the Court of Criminal Appeals once the trial court determines whether findings are necessary. See Tex. Code Crim. Proc. art. 11.07 also Busby v. Dretke, 359 F.3d 708, 723 3(c); see § (5th Cir. 2004) ("Habeas petitioners must exhaust state remedies by pursuing their claims through one complete cycle of either state direct appeal or post-conviction collateral proceedings."). Barley concedes that his second state habeas application remains pending in state court and that the Texas Court of Criminal Appeals has not yet had an opportunity to address the issues raised in the pending petition. Because this state process remains available, Barley does not satisfy any statutory exception to the exhaustion doctrine. Comity requires this court to defer until the Texas Court of Criminal Appeals has addressed the petitioner's claims. Accordingly, the court will grant the respondent's motion for summary judgment and dismiss this case for lack of exhaustion. Barley has filed a motion to stay this case in abeyance while his habeas corpus application is pending in state court. Entry No.2) (Docket Requests to stay a federal habeas proceeding are governed by the criteria found in Rhines v. Weber, 125 S. Ct. 1528 (2005). In that case, the Supreme Court held that district courts -4- may stay a mixed petition, containing both exhausted unexhausted claims, only in "limited circumstances." and Id. at 1534. At a minimum, a petitioner must show good cause for his failure to exhaust. Id. The petition filed in this case is not mixedi unexhausted. it is wholly Moreover, Barley does not demonstrate the requisite good cause for his failure to exhaust state court remedies under the criteria found in Rhines or that a stay is warranted under the circumstances of this case. habeas review application § 2244(d) (2) is tolled remains The statute of limitations on federal while pending in Barley's state state habeas See court. 28 corpus U.S.C. Provided that he acts with due diligence, it appears that Barley will have ample time left under the governing statute of limitations in which to seek habeas relief in federal court in the· event of an unfavorable ruling on his pending state court application. Accordingly, the court will deny Barley's request for a stay. III. Certificate of Appealability The habeas corpus petition filed in this case is governed by the AEDPA, codified at 28 U.S.C. § 2253, which requires a certificate of appealability to issue before an appeal may proceed. See Hallmark v. Johnson, 118 F.3d 1073, 1076 (noting that actions filed under either 28 U.S.C. require a certificate of appealability) (5th Cir. § 2254 or § 2255 "This is a jurisdictional prerequisite because the COA statute mandates that -5- 1997) \ [u] nless a circuit justice or judge issues a certificate of appealability, an ," appeal may not be taken to the court of appeals. v. § Cockrell, 123 2253(c) (1)) requires a S. Ct. 1029, 1039 Miller-EI (citing (2003) 28 U.S.C. Rule 11 of the Rules Governing Section 2254 Cases district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. certificate of A petitioner makes "a constitutional right," appealability will substantial 28 U.S.C. not of showing § issue the 2253(c) (2), unless denial the of a which requires a petitioner to demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claims debatable Tennard v. 2565 (2004) (quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). Under or wrong." Dretke, 124 S. Ct. 2562, the controlling standard, this requires a petitioner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented encouragement to proceed further.'" Where denial of relief is based were 'adequate to deserve Miller-EI, 123 S. Ct. at 1039. on procedural grounds the petitioner must show not only that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," but also that they "would find it debatable whether the district court was correct in its procedural ruling." Slack, 120 S. Ct. at 1604. -6- A district court may deny a certificate of appealability, sua sponte, without Alexander v. reasons set requiring Johnson, further 211 F.3d 895, forth above, this briefing 898 or argument. (5th Cir. 2000). court concludes that See For jurists of reason would not debate whether any procedural ruling in this case was correct or whether the petitioner states a valid claim for relief. Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. Respondent's Motion for Summary Judgment Entry No. 12) is GRANTED. (Docket 2. The Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) is DISMISSED without prejudice for lack of exhaustion. 3. The petitioner's motion to stay this abeyance (Docket Entry No.2) is DENIED. 4. A certificate of appealability is DENIED. case in The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this the 18th day of May, 2015. 'SIMLAKE UNITED STATES DISTRICT JUDGE -7-
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