McMullin v. Thaler, No. 4:2009cv02347 - Document 21 (S.D. Tex. 2010)
Court Description: MEMORANDUM AND OPINION. Granting 16 MOTION for Summary Judgment With Brief in Support. This court will not issue a certificate of appealability. (Signed by Judge Lee H Rosenthal) Parties notified.(jegonzalez, )
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tconviction context, the showings are somewhat different because the defendant has already been convicted. McMullin is serving a life sentence; there is no danger that his sentence will expire before the state postconviction proceedings are completed. Moreover, a properly filed application for state postconviction relief tolls limitations for federal relief. 28 U.S.C. 5 2244(d)(2)(West 1997). The federal limitations period will be tolled for the period McMullin's state habeas application remains pending in state court. This factor does not weigh in McMullin's favor. At this time and on this record, this court is reluctant to bypass the exhaustion requirement and address the merits of McMullin's federal petition. The reasoning in Deters is instructive: Because no Texas appellate court, let alone the Court of Criminal Appeals, has reviewed the merits of Deters' claims, this Court would unduly trample upon the objectives of the exhaustion doctrine to reach the merits of this case. Because Deters' state appeal is still pending, we would have to ignore the doctrine of federal-state comity by disrupting that ongoing state process. More practically, we would have to reach the merits without the aid of a complete record. We therefore hold that Deters' failure to comply with the exhaustion requirement precludes our review of the merits here. This holding in no way denigrates the claims which Deters makes, for he presents serious allegations which clearly merit review. However, we find that at this juncture the federal system is not the proper forum to review those claims. Deters v. Collins, 985 F.2d 789, 797 (5th Cir. 1993). In this case, no Texas appellate court, let alone the Court of Criminal Appeals, has reviewed the merits of McMullin's newly added ineffective assistance claims. Because McMullin has not fairly presented all of his ineffective assistance claims to the Texas Court of Criminal Appeals, that court has had no opportunity to review the claims raised in the instant federal petition. A ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (the exhaustion requirement is "designed to protect the state courts' role in the enforcement of federal law and prevent the disruption of state judicial proceedings"). Because the state courts have not completed their review of his application under Article 11.07 of the Texas Code of Criminal Procedure, this avenue for review remains available. McMullin has not shown a statutory exception to the exhaustion doctrine. The pending federal habeas petition is dismissed without prejudice as premature for lack of exhaustion. 111. Conclusion The respondent's motion for summary judgment based on the failure to exhaust state court remedies, (Docket Entry No. 16), is granted. Due to the sensitivity of the information relating to McMullin's mental health, the respondent has moved to have copies of McMullin's medical records from the Veteran's Administration Hospital filed under seal. (Docket Entry No. 17). This motion is granted. The Clerk must maintain these documents under seal to prevent the unauthorized disclosure of confidential information. The respondent moved to withdraw a previous motion to file records under seal. (Docket Entry No. 15). The respondent explained that he inadvertently failed to attach the proper records to the motion to filed records under seal. The motion to withdraw previous motion to file records under seal, (Docket Entry No. 15), is granted. The previous motion to file records under seal, (Docket Entry No. 14), is stricken. "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]" 28 U.S.C. § 2253(c)(l)(A). Under Rule 11of the Federal Rules Governing Section 2254 Cases, effective December 1,2009, the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. InAlexander v. Johnson, 211 F.3d 895 (5th Cir. 2000), the Fifth Circuit explained that a district court may decide whether to issue a certificate of appealability without a motion. A certificate of appealability may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court explained the requirement associated with a "substantial showing of the denial of a constitutional right" in Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. This court will not issue a certificate of appealability. SIGNED on June 21,2010 at Houston, Texas. Lee H. Rosenthal United States District Judge I' IA\l.\\~~r1u~nur-haheas~ZllO~\OO-Z?37 dl4 wpd
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