Ross v. Thaler, Director TDCJ-CID, No. 4:2009cv00574 - Document 13 (N.D. Tex. 2009)
Court Description: FINDINGS AND RECOMMENDATIONS on case: Magistrate Judge Charles Bleil no longer assigned to case. Objections to F&R due by 1/6/2010 (Ordered by Magistrate Judge Charles Bleil on 12/16/2009) (wrb) cy to Ross
Download PDF
<![CDATA[
Ross v. Thaler, Director TDCJ-CID Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION WILLIAM ALLEN ROSS, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § Civil Action No. 4:09-CV-574-A FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows: I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254. B. PARTIES Petitioner William Allen Ross, TDCJ-CID #632031, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently incarcerated in Brownfield, Texas. Respondent Rick Thaler is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division. No service has issued upon Respondent. Dockets.Justia.com C. FACTUAL AND PROCEDURAL HISTORY Ross is serving a 2-year sentence on his April 1, 2009, conviction for driving while intoxicated in Comanche County, Texas. (Petition at 2) Ross did not directly appeal his conviction or seek postconviction habeas relief in state court.1 The clerk of Court received for filing from Ross a document construed as a petition for writ of habeas corpus under 28 U.S.C. § 2254 on October 1, 2009. Ross was directed to complete and return a form petition, which was received and filemarked by the clerk on December 14, 2009. D. ISSUES Ross raises four claims challenging his 2009 conviction on substantive grounds. E. Exhaustion of State Court Remedies Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed.2 A district court is authorized under Rule 4 to examine and dismiss frivolous habeas petitions prior to any 1 Telephonic communication with the Comanche County District Clerk’s Office on this date confirmed that Ross has not filed a notice of appeal or an application for habeas relief under article 11.07 of the Texas Code of Criminal Procedure in the state court. 2 Section 2243, governing applications for writ of habeas corpus, provides: A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto. 28 U.S.C. § 2243 (emphasis added). Rule 4 of the Rules Governing Section 2254 Cases provides: The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Rules Governing Section 2254 Cases, Rule 4 (emphasis added). 2 answer or other pleading by the state. Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been presented to the highest court of the state and the court has been given a fair opportunity to pass on the claim. O’Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982); Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the state. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Thus, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review or a postconviction habeas corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2008); Anderson v. Johnson, 338 F.3d 382, 388 n.22 (5th Cir. 2003). Ross has not exhausted his state court remedies with respect to the claims presented. See O’Sullivan, 526 U.S. at 842-88; Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432; Carter, 677 F.2d at 443. Ross did not directly appeal his conviction and has not filed a state postconviction writ of habeas corpus seeking state habeas corpus relief. Because the Texas Court of Criminal Appeals has not been afforded a fair opportunity to consider the merits of Ross’s claims, the claims are unexhausted for purposes of federal habeas review. See Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001). 3 Accordingly, Ross must first pursue his available state remedies, in this case state postconviction habeas relief, before seeking relief under § 2254. Absent a showing that state remedies are inadequate, such showing not having been demonstrated by Ross, he cannot now proceed in federal court in habeas corpus. See 28 U.S.C. §2254; Fuller v. Florida, 473 F.2d 1383, 1384 (5th Cir. 1973); Frazier v. Jones, 466 F.2d 505, 506 (5th Cir. 1972). Accordingly, dismissal of this federal habeas corpus proceeding for lack of exhaustion is warranted so that Ross can fully exhaust his state court remedies and then return to this court, if he so desires, after exhaustion has been properly and fully accomplished. II. RECOMMENDATION Ross’s petition for writ of habeas corpus should be dismissed without prejudice, except as to any application of the federal statute of limitations3 or other federal procedural bar that may apply. All pending motions not previously ruled upon should be denied as moot. III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge’s proposed findings, conclusions, and recommendation until January 6, 2010. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and 3 28 U.S.C. § 2244(d) imposes a one-year statute of limitations for filing non-death penalty habeas corpus petitions in federal court, subject to applicable tolling. See 28 U.S.C. § 2244(d)(1)-(2). 4 specify the place in the magistrate judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). IV. ORDER Under 28 U.S.C. § 636, it is ordered that each party is granted until January 6, 2010, to serve and file written objections to the United States Magistrate Judge’s proposed findings, conclusions, and recommendation. It is further ordered that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections. It is further ordered that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge. SIGNED December 16, 2009. /s/ Charles Bleil CHARLES BLEIL UNITED STATES MAGISTRATE JUDGE 5
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
