Williams v. Thaler, Director TDCJ-CID, No. 3:2009cv01933 - Document 7 (N.D. Tex. 2009)
Court Description: Memorandum Opinion and Order: The petition is dismissed. (See Order) (Ordered by Senior Judge A. Joe Fish on 11/30/2009) (rrr)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DERRIC WILLIAMS, Petitioner, VS. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 3:09-CV-1933-G (BH) ECF MEMORANDUM OPINION AND ORDER Before the court is the petition of Derric Williams ( Williams or the petitioner ) for a writ of habeas corpus by a person in state custody. For the reasons discussed below, the petition is dismissed. I. BACKGROUND The petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice,Correctional Institutions Division ( TDCJ-CID ), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ( Petition or the petition ). The respondent is Rick Thaler, Director of TDCJ-CID. The petitioner s claimed ground for relief is that his conviction for aggravated robbery with a deadly weapon was not properly supported by an oral pronouncement of an affirmative finding of a deadly weapon. Petition at 7, 11. The petition does not list the nature of the offense(s) for which the petitioner was convicted, any docket numbers, or the date of judgment of conviction. See id. at 2. The petition states only that the petitioner was convicted in the 291st Judicial District for 30 years aggravated. Id. On October 27, 2003, Williams entered agreed pleas of guilty before the 291st Judicial District Court to three counts of aggravated robbery with a deadly weapon (Cause Nos. F-02-73601, F-034-0783, and F-03-40784) and was sentenced to thirty years in prison.1 The petition does not state whether Williams filed a direct appeal from any of these convictions. See Petition at 3. The Texas Fifth District Court of Appeals in Dallas has no record of a direct appeal from any of Williams s three convictions.2 The petition states that Williams has not filed any applications for a See Texas Department of Criminal Justice, Offender Information Detail (for TDCJ No. 01202848), http://168.51.178.33/webapp/TDCJ/InmateDetails.jsp?sidnumber=05537790#Projec ted (attached to this order as Exhibit 1); see also Dallas County, Dallas County Criminal Background Search (under Williams, Derrick and date of birth Sept. 27, 1978), http://www.dallascounty.org/criminalBackgroundSearch/ (attached to this order as Exhibit 2). 1 See Fifth Court of Appeals -- Dallas, Texas, Search for a Case (search results for Williams and Derric* ), http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?Command=search&file=C05 _CASE.ASK%2Cc05c_old.ask%2Cc05tcase.ask&request=Williams+and+Derric*& MaxHits=10&NumLines=1 (attached to this order as Exhibit 3). 2 -2- writ of habeas corpus with the state of Texas. Petition at 3. However, on June 2, 2006, Williams filed an application for a writ of habeas corpus with the Texas Court of Criminal Appeals seeking review of his conviction in cause number F-02-73601.3 The Court of Criminal Appeals dismissed the application for non-compliance on June 14, 2006.4 This means that Williams s application was not filed with the Court of Criminal Appeals but instead was returned to him because he did not file his application on the form required by Texas Rule of Appellate Procedure 73.1. See TEX. R. APP. P. 73.2. II. ANALYSIS A state prisoner is required to fully exhaust all available state court remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). To satisfy the exhaustion requirement of § 2254, a petitioner must fairly present the factual and legal basis of his claims to the highest available state court for review, either on direct review of the conviction or in a post-conviction challenge. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). The state See Texas Courts Online -- Court of Criminal Appeals, Case Search Results on Case # WR-64,910-01, http://www.cca.courts.state.tx.us/opinions/case.asp?FilingID=243619 (attached to this order as Exhibit 4). 3 See Texas Courts Online - Court of Criminal Appeals, Case # WR64,910-01 > Event: ACTION TAKEN, http://www.cca.courts.state.tx.us/opinions/EventInfo.asp?EventID=2245707 (attached to this order as Exhibit 5). 4 -3- court must have the opportunity to pass on the substance of the petitioner s claims. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). Therefore, the applicant must present his claims in a procedurally correct manner. Deters, 985 F.2d at 795. A federal district court may raise the lack of exhaustion sua sponte. McGee v. Estelle, 722 F.2d 1206, 1214 (5th Cir. 1984) (en banc). It is well-settled that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). To satisfy the exhaustion requirement in Texas, a petitioner must present his claim to the Texas Court of Criminal Appeals via either a petition for discretionary review or an application for a writ of habeas corpus. Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986). A Texas inmate who does not file a petition for discretionary review as part of his direct appeal will not be deemed to have exhausted his state remedies until he has raised his claims before the state s highest court through collateral review provided by state habeas procedures. Richardson, 762 F.2d at 432. A Texas prisoner who seeks state habeas review in a manner that does comply with the Court of Criminal Appeals procedural directives for seeking such -4- review has not exhausted his state habeas remedy. Bautista, 793 F.2d at 110. Specifically, if the Texas Court of Criminal Appeals dismisses an application for a writ of habeas corpus for non-compliance, that Court has not considered the merits of the claims presented in the application, and the claims remain unexhausted. Slaughter v. Thaler, F. Supp. 2d , 2009 WL 3199482, at *2 (N.D. Tex. Oct. 1, 2009) (Kinkeade, J.); Moore v. Quarterman, 2009 WL 50000, at *2 (N.D. Tex. Jan. 6, 2009) (Kinkeade, J.). In this case, Williams did not pursue a direct appeal from any of his three convictions. In addition, Williams has not sought collateral review of two of those convictions (Cause Nos. F-034-0783 and F-03-40784) through Texas habeas procedures. The lone habeas application Williams did file, which sought review of his conviction under Cause No. F-02-73601, was dismissed for non-compliance. It thus did not fairly present the substance of Williams s claim to the Court of Criminal Appeals. The Court of Criminal Appeals has simply had no opportunity to review any of the claims raised in the petition currently before this court. As a result, the court finds that Williams has failed to fully exhaust his available state remedies. III. CONCLUSION For the reasons discussed above, the petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice. -5- SO ORDERED. November 30, 2009. ___________________________________ A. JOE FISH Senior United States District Judge -6- EXHIBIT ONE -7- -8- -9- EXHIBIT TWO - 10 - - 11 - EXHIBIT THREE - 12 - - 13 - EXHIBIT FOUR - 14 - - 15 - - 16 - EXHIBIT FIVE - 17 - - 18 - - 19 -
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