Strieder v. Lumpkin, No. 4:2024cv01065 - Document 6 (S.D. Tex. 2024)
Court Description: MEMORANDUM OPINION AND ORDER - Because state habeas corpus review remains available, Strieder does not show that she fits within a recognized exception to the exhaustion doctrine. Under these circumstances, the pending federal habeas Petition must be dismissed without prejudice for lack of exhaustion. Based on the foregoing, the court ORDERS as follows: 1. The 1 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Karen Marie Strieder is DISMISSED WITHOUT PREJUDICE for lack of exhaustion. 2. A certificate of appealability is DENIED. (Signed by Judge Sim Lake) Parties notified. (sra4)
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Strieder v. Lumpkin Doc. 6 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION KAREN MARIE STRIEDER, TDCJ #2429665, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. § § § § § § § § § § § § § April 04, 2024 Nathan Ochsner, Clerk CIVIL ACTION NO. H-24-1065 MEMORANDUM OPINION AND ORDER The court has received a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition") (Docket Entry No. 1) from Karen Marie Strieder (TDCJ #2429665), who is incarcerated in the Texas Department of Criminal Justice Correctional Institutions Division ("TDCJ"). After considering all of the pleadings as required by Rule 4 of the Rules Governing Section 2254 Cases, the court will dismiss this action without prejudice for the reasons explained below. I. Background Public records reflect that Strieder is serving a 5-year prison sentence in TDCJ as the result of a conviction entered against her on January 3, 2023, for evading arrest with a motor Dockets.Justia.com vehicle in Colorado County Case No. CR22-059. 1 Strieder executed the pending federal habeas corpus Petition on March 8, 2024. 2 Strieder contends that she is entitled to relief under 28 U.S.C. § 2254 because she is innocent. 3 Strieder has not yet Because it is evident that sect this claim in state court, her Petition is subject to dismissal for lack of exhaustion. II. Discussion A federal court may not grant habeas corpus rel f under 28 U.S.C. § 2254 unless the petitioner "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. See Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999}. To satisfy this requirement a Texas prisoner must raise her claims before the Texas Court of Criminal Appeals. See Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985) ("[T]he exhaustion requires that the Texas Court of Criminal Appeals be given doct an opportunity to review and rule upon the petitioner's claim before he resorts to federal courts."). Texas Department of Criminal Justice Offender Information, available at: https://inmate.tdcj.texas.gov (last visited April 4, 2024}. For purposes of Petition, Docket Entry No. 1, p. 15. identification all page numbers refer to the pagination imprinted at the top of each docket entry by the court's Electronic Case Filing ( "ECF"} system. 2 3 at 5. -2- A Texas criminal defendant may exhaust remedies by taking one of two paths to the Texas Court of Criminal Appeals. conviction followed by path is a direct appeal from a judgment a The first tion for discretionary review in the Texas Court of Criminal See Tex. R. App. P. 68.1. Appeals. application for a post-conviction wr The second path is an of habeas corpus under Procedure filed in the Article 11.07 of the Texas Code of Crimi convicting court, which is transmitted to the Texas Court of Criminal Appeals once the trial court determines whether findings are necessary. See Tex. Code Crim. Proc. art. 11.07 § 3(b)-(c). "Habeas petitioners must exhaust state remedies by pursuing their claims through one complete cycle of either state direct appeal or post-conviction col ral proceedings." Busby v. Dretke, 359 F.3d 708, 723 (5th Cir. 2004). The exhaustion requirement "is not reflects a policy of federal-state comity . jurisdictional, but . designed to give the State an initial opportunity to pass upon and correct leged violations of its prisoners' federal rights." Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (internal citations and quotation marks omitted). Exceptions exist only where there is "an absence of available State corrective process" or "circumstances st that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B). Strieder states that she does not know if she filed a direct appeal from her conviction for evading arrest, 4 but a search of 4 Petition, Docket Entry No. 1, p. 2 8. -3- publicly available state court records reflects that she did not pursue an appeal and the time to do so has expired. See Tex. R. App. P. 26.2(a)(1). Likewise, there is no record showing that she has filed an application for a state post-conviction writ of habeas corpus under Article 11. 07. Because state habeas corpus review remains available, Strieder does not show that she fits within a recognized exception to the exhaustion doctrine. circumstances, the pending federal habeas Under these Petition dismissed without prejudice for lack of exhaustion. must be See Rose v. Lundy, 102 S. Ct. 1198, 1203 (1982) ("A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error."). III. Certificate of Appealability Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c) (2), which requires a petitioner to demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 120 denial of rel s. Ct. 1595, 1604 (2000). Where is based on procedural grounds the petitioner must show not only that "jur ts of reason would find it debatable -4- 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." Id. Because reasonable jurists would not debate that the peti tioner has not yet exhausted available state court remedies, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Karen Marie Strieder (Docket Entry No. 1) is DISMISSED WITHOUT PREJUDICE for lack of exhaustion. 2. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the petitioner. SIGNED at Houston, Texas, on this the 4th day of April, 2024. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -5-
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