Canady v. Thaler, No. 4:2013cv00196 - Document 25 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER denying 19 MOTION for Discovery of Trial and Appellant Record, denying 10 MOTION Expansion of the Records, denying 22 MOTION for Summary Judgment, denying 17 MOTION for Summary Judgment, denying 11 MO TION immediate release, granting 14 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus, Pursuant to 28 U.S.C. 2254 (b), (c), denying 13 Deposition for Proof of Claim, denying 16 MOTION for Default Judgment against Rick Thaler. (Signed by Judge Sim Lake) Parties notified. (aboyd)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION WARREN PIERRE CANADY, TDCJ-CID NO. 723784, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § § CIVIL ACTION NO. H-13-0196 5 § § MEMORANDUM OPINION AND ORDER Warren Pierre Canady, proceeding pro se, has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) .' Pending before the court is Respondent Thalerrs Motion to Dismiss Pursuant to 28 U.S.C. § in Support Petitioner, Warren Pierre (Docket Entry No. 14).2 Canady, has not filed a response. 2254(b), (c), With Brief Petitioner seeks an examining hearing and an evidentiary hearing (Docket Entry No. 3)3, and he has also filed several motions, including: Motion for Expansion of 'Petition for a Writ of Habeas Corpus By a Person in State Custody ("Canadyrs Petition"), Docket Entry No. 1. '~espondent Thaler's Motion to Dismiss Pursuant to 28 U.S.C. 2254(b), (c) With Brief in Support ("Respondent's Motion to Dismiss"), Docket Entry No. 14. § 3~etitionerr Memorandum at Law ("Petitionerrs Memorandum") , s Docket Entry No. 3, pp. 5-13. the Records (Docket Entry No. lo), Deposition for Proof of Claim (Docket Entry No. 13), Motion for Default Judgment (Docket Entry No. 16), Motion for Summary Judgment (Docket Entry No. 17), Motion for Discovery of Trial and Appellant Record (Docket Entry No 19), and Motion to Grant Summary Judgment No-Evidence No. 22). (Docket Entry For the reasons stated below, Respondent's Motion to Dismiss will be granted, Canadyfs Petition and motions will be denied. I. Procedural History Warren Pierre Canady is in the lawful custody of the Texas Department of Criminal Justice pursuant to a January 11, 2011, conviction for credit card abuse. Canady was sentenced to five years in the Texas Department of Criminal Justice, Institutional Di~ision.~ Canady appealed his conviction to the Court of Appeals for the Fourteenth District of Texas at Houston, which on February 2, 2012, affirmed the judgment of the trial court as r e f ~ r m e d . ~ Canady filed a Petition for Discretionary Review 4 ~ ~ d g m e nof Conviction by Jury in State v. Canadv, Cause t No. 1276450 (248th District Court of Harris County, Texas, January 11, 2011), State Court Records ("SCR"), Docket Entry No. 15-10, p. 21. Page citations to state court records are the pagination imprinted by the federal court's electronic filing system at the top and right of the document. Page citations to federal court filings are to the native page numbers at the bottom of the page. he Fourteenth Court of Appeals reformed the trial courtfs judgment to accurately reflect that Canady was convicted of credit (continued. . . ) ("PDR") on March 1, 2012.6 The case information for Canadyfs PDR on the Texas Court of Criminal Appeals ("CCA") internet website shows that the PDR was refused on April 18, 2012.7 On June 27, 2012, Canady filed a state application for habeas corpus relief.8 The application was dismissed by the CCA on January 9, 2013, for noncompliance with Tex. R. App. P. 73.1(c).' On January 24, 2013, Canady filed his petition for a writ of habeas corpus with this court (Docket Entry No. 1). Respondent Thaler filed a Motion to Dismiss Pursuant to 28 U.S.C. § (c) on March 18, 2013 (Docket Entry No. 14). 2254(b), Canady did not directly respond to Respondentfs Motion to Dismiss but filed several motions as mentioned above. 5 ( . . .continued) card abuse, rather than fraudulent use or possession of identifying information. The Fourteenth Court of Appeals found this to be a clerical mistake. See Judgment SCR, Docket Entry No. 23-3,; Memorandum Opinion, SCR, Docket Entry No. 23-1, p. 2 n.1. See also Canadv v. State, No. 14-11-00073-CR, 2012 WL 354185, at 2 (Tex. App.--Houston [14th Dist.] 2012, pet ref'd) (mem. op., not designated for publication). 6~anady'sPetition for Discretionary Review ("Canady's PDR"), Canadv v. State, PD-0263-12, Docket Entry No. 24. 7~ccessed www.cca.courts.state.tx.us on June 11, 2013. at '~pplication for a Writ of Habeas Corpus Seeking Relief from Final Felony Conviction Under Code of Criminal Procedure, Article 11.07, Trial Court Case No. 1276450-B, SCR, Docket Entry No. 15-20, pp. 7-19. 'see Ex parte Canadv, No. WR-30,119-24 (Tex. Crim. App., Jan. 9, 2013), SCR, Docket Entry No. 15-20, p. 2. A. Petitionerrs Claims Canady presents the following grounds for habeas relief: 1. The charge he was convicted of was not found or returned by a grand jury in the indictment. 2. He was actually innocent of the habitual offender allegations because of the staters failure to prove guilt beyond a reasonable doubt to a jury. 3. He was actually innocent as to the offense of credit card abuse because of the staters failure to prove guilt beyond a reasonable doubt.'' Respondent argues that Canadyfs claims are unexhausted pursuant to 28 U. S.C. 5 2254 (b) and (c).l1 Because Canady filed his application for federal habeas corpus relief after April 24, 1996, it is subject to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997). B. The Exhaustion Requirement The AEDPA requires state prisoners to exhaust state remedies before seeking federal habeas relief. and (c).I2 28 U. S .C. § 2254 (b)(1)(A) "The exhaustion doctrine seeks to afford the state 1°canadyrs Petition, Docket Entry No. 1, pp. 6-7. ''~espondent~sMotion to Dismiss, Docket Entry No. 14, p. 4. '2 U.S.C. 5 2254 (b)(1)(A) provides: "An application for a '8 writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--(A) the applicant has exhausted the remedies (continued... ) courts a meaningful opportunity to consider allegations of legal error without interference from a federal judiciary." Hillerv, 106 S. Ct. 617, 620 (1986). Vassuez v. A Texas prisoner satisfies the exhaustion requirement when the substance of the federal claims have been fairly presented to the state's highest court by filing either (1) a direct appeal followed, if necessary, by a petition for discretionary review in the Texas CCA; or (2) a state petition for writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Sones v. Harsett, 61 F.3d 410, 414-15 (5th Cir. 1995) ; Richardson v. Procunier, 762 F.2d 429, 430-32 (5th Cir. 1985); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). Habeas petitioners are not required to pursue both avenues of federal habeas relief to meet the exhaustion requirement. Mvers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990). satisfies the "fairly presented" A federal claim requirement when "substantial equivalent" of the claim presented courts. Whitehead, 157 F.3d at 387. it is the to the state This requirement is not satisfied if the petitioner presents new legal theories as new factual claims in his federal petition. Furthermore, if a claim is raised in the CCA without first having been presented for review before an intermediate appellate 12 ( . . . continued) available in the courts of the State." 28 U.S.C. § 2254(c) provides: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." court, the petitioner has failed to exhaust his state remedies. Mvers, 919 F.2d at 1077. The exhaustion doctrine "requires that the chosen avenue of post-conviction relief, whether direct or collateral, be pursued in such a manner so as not to present claims to a state's appellate courts for the first and only time in a petition for discretionary review." I . In other words, the d petitioner must present claims in a "procedurally correct manner" to meet the exhaustion requirement. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). If a habeas petitioner fails to exhaust his claims in the state court, the dismissed. federal petition for habeas relief must be Dispensa v. Lvnauqh, 847 F.2d 211, 217-18 (5th Cir. 1988); Rose v. Lundv, 102 S. Ct. 1198, 1199 (1982). If a petition for habeas relief contains exhausted and unexhausted claims, then it must be dismissed as a "mixed petition" for failure to exhaust. Murphv v. Johnson, 110 F.3d 10, 11-12 (5th Cir. 1997). The issue is whether or not Canady met the exhaustion requirement by fairly presenting his claims to the statefs highest court. Richardson, 763 F.2d at 430. Canady can meet the exhaustion requirement by directly appealing through the state appellate system or filing a state petition for habeas relief. I. d at 432. Canady has failed to fully exhaust his claims in the state courts. Although Canady pursued both a direct appeal followed by a petition for discretionary review and a state petition for habeas relief, neither attempt has satisfied the exhaustion requirement. C. Application of the Exhaustion Requirement 1. Direct Appeal Followed by Petition for Discretionarv Review On direct appeal to the Court of Appeals, Canady raised the issue that he "was egregiously harmed by the trial court's failure to instruct the jury on unanimity as to any single specific criminal act presented which was error and violated the Texas Constitution and Texas Code of Criminal Procedure."13 Asserting that the state presented evidence of multiple separate and distinct instances of credit card abuse without authorization from Robert Hanson, the cardholder, Canady argued that the trial court was required to instruct the jury that it must be unanimous in finding that a single use of Hansonrs credit card was proved beyond a reasonable doubt in deciding whether he was guilty.14 Canady argued that the trial court's error violated his constitutional right to a unanimous verdict.15 In Canadyrs PDR to the CCA, Canady raised four different claims : 13~riefof Appellant in Fourteenth Court of Appeals, SCR, Docket Entry No. 15-12, pp. 6, 14-15. 141d. at 14-15. 1 5 at ~6. (1) "The State charged applicant with a crime that had never been found or returned by a grand jury." (2) "[HI e is actually innocent of the habitual offender allegations because the State failed to prove to the jury his guilt of two prior convictions beyond a reasonable doubt." (3) "The evidence was insufficient to support the conviction under the jury charge, naming Robert Hanson, as cardholder." (4) "The State of Texas lacked jurisdiction to try applicant because it failed to prove if the alleged crime fell within the limits of Texas territorial jurisdiction. "16 None of the claims raised in Canadyfs PDR concern the issue addressed in his appeal to the Court of Appeals, i.e., violation of his constitutional right to a unanimous verdict. Because Canady raised new claims in his PDR that were not presented to the Court of Appeals, it is clear that he has bypassed part of the staters appellate process. Therefore, Canady remedies for the claims raised in his PDR. failed to exhaust his Instead of raising the claim that he had raised on direct appeal in his PDR, Canady raised four new claims that were never presented to the Court of Appeals. Myers, 919 F.2d at 1077. Although Canadyfs PDR arguably raised each of the three claims raised in his federal habeas corpus petition,17 because Canady did not "fairly present" any of the l6canadyf PDR, Docket Entry No. 24, p . vii. s 17canadyfsthree claims in his federal habeas corpus petition (1) "The state charged applicant with a are stated as follows: crime that had never been found or returned by a grand jury"; (continued. . . ) claims that he raised in his PDR to the state court of appeals, those claims remain unexhausted. Moreover, Canady has not Whitehead, 157 F.3d at 387. demonstrated any "exceptional circumstances of peculiar urgency" that would call for federal interference to bypass the exhaustion requirement, such as where state remedies are futile or where the state system solely and "unjustifiably delays review of petitioner's claim." Deters, 985 F.2d at 795. Accordingly, the court concludes that Canady failed to exhaust his state remedies for any of the claims raised in his federal habeas petition via direct appeals followed by a PDR to the Texas CCA. 2. State Petition for Habeas Corpus Relief Canady raised three grounds in his state petition for habeas corpus relief: (1) "Applicant was charged with and found guilty of a crime that had never been found or returned by a grand jury. " (2) "Applicant is actually innocent of the habitual offender allegations." 17 ( . . .continued) (2) "[Hle is actually innocent of the habitual offender allegations because the State failed to prove to the jury his guilt of two prior convictions beyond a reasonable doubt"; and (3) "The State of Texas lacked jurisdiction to try applicant because it failed to prove if the alleged crime fell within the limits of Texas territorial jurisdiction." Canady's Petition, Docket Entry No. 1, pp. 6-7. (3) "The evidence was insufficient to support a conviction under the jury charge naming Robert Hanson as cardholder."I8 (a) Failure to Comply with Rule 73.1 (c) On January 9, 2013, the CCA dismissed Canady's state petition for habeas relief because it was noncompliant with TEX. R. APP. P. 73.1 (c).I9 The CCA's reason for dismissing Canady's state petition for habeas relief was that the "applicantfs supporting facts and/or grounds for relief are not on the prescribed form."20 Texas Rule of Appellate Procedure 73.l(c) provides: "The application must specify all grounds for relief, and must set forth in summary fashion the facts supporting each ground." Texas Rule of Appellate Procedure 73.2 states that a noncompliant application will not be filed, but will instead be returned to the person who filed it. TEX. R. APP. P. 73.2. Under Texas law, compliance with Rule 73 - 1 is a prerequisite to consideration of the merits of the application. Ex parte Blacklock, 191 S.W.3d 718, 719 (Tex. Crim. App. 2006). Although Canady's state habeas corpus petition raised the same three grounds that he asserts in his federal habeas corpus petition, because of Canadyfs failure to comply with Texas Rule of 18~pplication for a Writ of Habeas Corpus Seeking Relief from Final Conviction Under Code of Criminal Procedure, Article 11.07, Trial Court Case No. 1276450-B, SCR, Docket Entry No. 15-20, pp. 12-14. Igsee Ex parte Canady, No. WR-30,119-24 (Tex. Crim. App. Jan. 9, 2013), SCR, Docket Entry No. 15-20, p. 2. 20~etitionerf Memorandum, Exhibit C, Docket Entry No. 3, s p. 18. Appellate Procedure 73.1, none of these grounds have been properly presented to the Texas CCA and thus remain unexhausted. Moreover, because Canady' s second and third grounds in his state habeas corpus petition are based on arguments that the State failed to prove his guilt, they pertain to the sufficiency of the eviden~e.~'Sufficiency of the evidence claims are not cognizable under state habeas relief. (Tex. Crim. App. 2004) . Ex parte Griqsbv, 137 S.W.3d 673, 674 Therefore, the second and third grounds for relief pertaining to insufficiency of the evidence should have been raised through direct appeal rather than through habeas relief. The court concludes that Canady has failed to exhaust his state remedies for any of the claims raised in his federal habeas corpus petition by filing a state habeas corpus petition. Furthermore, the court concludes that the record does not "demonstrate cause and prejudice or show that the failure to consider the claims will result in a fundamental miscarriage of justice." Deters, 985 F.2d at 795. 111. Although Appealability Certificate of Appealabilitv Canady has not yet requested ("COA"), the court may Certificate deny a COA Alexander v. Johnson, 211 F.3d 895, 898 curiam). a of sua sponte. (5th Cir. 2000) (per To obtain a COA for claims denied on the merits Canady 2 1 ~ a n a d y fPetition, Docket Entry No. 1 at 6-7. s must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c) (2); Tennard v. Dretke, 124 S. Ct. 2562, 2569 (2004). To make such a showing Canady must demonstrate that it is debatable among reasonable jurists whether a court could resolve the issues in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Tennard, 124 S. Ct. at 2569. Where a district court denies a federal habeas petition on procedural grounds the petitioner must show: (1) "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right"; and (2) "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). In this case the court denied the federal habeas petition on procedural grounds for required by 28 U. S.C. § failure to exhaust state 2254 (b)(1)(A) and (c). stated in this Memorandum Opinion and Order, demonstrated that a COA should be issued. remedies as For the reasons Canady has not He has not made any substantial showing of a denial of a constitutional right in the claims raised in his federal habeas petition. The court also concludes that "jurists of reason" would not find it debatable whether the district court was correct in its procedural ruling. Accordingly, petitioner is not entitled to a COA on the court's decision to dismiss the federal habeas corpus claims without prejudice. IV. Conclusion and O r d e r For the reasons explained above, Warren Pierre Canady has failed § to meet the 2254 (b)(1)(a) and (c). 1. exhaustion requirement of 28 U.S.C. The court ORDERS the following: Respondent Thaler's Motion to Dismiss Pursuant to 28 U.S.C. § 2254 (b), (c) (Docket Entry No. 14) is GRANTED. 2. Canady's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DENIED. 3. A Certificate of Appealability is D E N I E D . 4. Canady's Motion for Expansion (Docket Entry No. 10) is D E N I E D . 5. Canady's request for Supplemental Relief (Docket Entry No. 11) is D E N I E D . 6. Canady's Deposition for Proof Entry No. 13) is D E N I E D . 7. Canady's Motion for Default Judgment ( ~ o c k e t Entry No. 16) is D E N I E D . 8. Canady's Motion for Summary Judgment (Docket Entry No. 17) is D E N I E D . 9. Canady' s Motion for Discovery of Trial and Appellant Record (Docket Entry No. 19) is D E N I E D . 10. of the Records of Claim (Docket Canady's Motion to Grant Summary Evidence (Docket No. 22) is D E N I E D . Judgment No- S I G N E D at Houston, Texas, on this the 13th day of June, 2013. UNITED STATES DISTRICT JUDGE -13-