Martinez v. State of Texas, No. 4:2013cv01525 - Document 7 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER: 1 PETITION for Writ of Habeas Corpus is dismissed. COA is denied. (Signed by Judge Sim Lake) Parties notified.(glyons)
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Martinez v. State of Texas Doc. 7 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION PABLO MARTINEZ, TDCJ-CID NO. 1797396, § § § § § Petitioner, v. § § § § § § § § WILLIAM STEPHENS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-13-1525 MEMORANDUM OPINION AND ORDER Pending before this court is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. inmate of 2254, filed by Pablo Martinez, an § the Texas Department of available state court Criminal Justice Having reviewed the pleadings Institutions Division (TDCJ-CID) and Criminal records, the court will dismiss Martinez's habeas petition because he has failed to exhaust state court remedies as required by I. Martinez convictions Petition, is for Docket 2254. § Claims and Procedural History serving three possession Entry No. of I, 25-year a sentences controlled at 2. pursuant substance. Liberally to See construed, Martinez's petition indicates that he was interrogated without a lawyer and without being fully and effectively advised of his rights. See Miranda v. Arizona, 86 S. Ct. 1602 (1966). Id. at 6. Martinez was sentenced on June 26, 2012, after entering a guilty Id. plea pursuant to a plea bargain. He denies filing at 2. either an appeal of the trial court's judgment or a petition for discretionary Appeals. not review (PDR) with the Docket Entry No. I, pp. 2-3. file an application for a writ Texas Court of Criminal He also states that he did of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure challenging the convictions. Id. at 3. The records for the Texas Court of Criminal Appeals do not indicate that either a PDR or a state writ application was filed. See Court of Criminal Appeals Website, II. Under 28 U.S.C. § 2254 Analysis a habeas petitioner must exhaust available state remedies before seeking relief in federal court. See Nobles v. Johnson, 127 F.3d 409, 419-420 (5th Cir. 1997). To exhaust his state remedies, the petitioner must fairly present the substance highest of his criminal claims the state courts, and the state's court must have an opportunity to review the merits of the claims. Id. citing Picard v. Connor, 92 S. Ct. 509, 512-13 (1971); Myers v. 1990) . In a Texas to Collins, petitioner 919 F.2d 1074, 1076 satisfies requirement this (5th Cir. by properly filing a PDR with the Texas Court of Criminal Appeals or, in a post-conviction matter, by filing a state application for a -2- wri t of habeas corpus in state district court, under TEX. CODE CRIM. PRO. art. 11.07, which forwards the application to the Court of Criminal Appeals. 32 (5th Cir. See Richardson v. Procunier, 762 F.2d 429, 431The highest court must have a 1985). reasonable opportunity to consider the merits of the claims presented in a federal habeas petition. Picard, 92 S. Ct. at 512. A district court is authorized to dismiss a federal habeas petition that reveals either on its face, or when considered with material of which court takes judicial notice, that the requirement of exhaustion of state remedies has not been satisfied. v. McKaskle, 722 satisfied the habeas F.2d 227 (5th Cir. petition in federal court Martinez has 1984). exhaustion requirement, but he may after he Resendez has file done not another so. See Strickland v. Thaler, 701 F.3d 171, 174 (5th Cir. 2012), citing In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997). The court ADVISES Martinez that he is subject to a one-year statute of limitations under 28 U. S. C. dismissed present § without his 2244 (d) . Accordingly, prejudice claims to the for failure Texas Court this of of action will be petitioner to Criminal Appeals as the required by 28 U.S.C. § 2254. A Certificate of Appealability (COA) will not be issued unless the petitioner makes constitutional right." "a substantial showing of the denial of a 28 U.S.C. § 2253 (c) (2) . Should Martinez file a notice of appeal, this court will deny the issuance of a COA -3- for the reasons stated in this Memorandum Opinion and Order. See Whitehead v. Johnson, 157 F.3d 384, 386 (5th Cir. 1998). III. Conclusion The court ORDERS the following: 1. The Application for a Writ of Habeas Corpus Seeking Relief from Final Felony Conviction Under Code of Criminal Procedure, Article 11.07 (Docket Entry No.1) is DISMISSED without prejudice for failure to exhaust state court remedies. 2. A Certificate of Appealability is DENIED. 3. The Clerk will provide a copy of this Memorandum Opinion and Order to the petitioner, and will provide a copy of the petition and this Memorandum Opinion and Order to the respondent and the attorney general by providing one copy to the Attorney General of the State of Texas. SIGNED at Houston, Texas, on this the 5th day of July, 2013. UNITED STATES DISTRICT JUDGE -4-