Edwards v. State of Texas, No. 4:2013cv02674 - Document 8 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER denying 3 MOTION for Continuance and 6 MOTION Set Aside Indictment. Edward's 1 petition for a writ of habeas corpus by a person in state custody is dismissed without prejudice for his failure to exhaust state court remedies. A certificate of appealability is denied. (Signed by Judge Sim Lake) Parties notified.(rosaldana, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CHARLES EDWARDS, SPN NO. 00372329, Petitioner, v. SHERIFF ADRIAN GARCIA,l Respondent. § § § § § § § § § § CIVIL ACTION NO. H-13-2674 MEMORANDUM OPINION AND ORDER Charles Edwards, submitted a an inmate of the Harris County Jail, hand-written petition for a writ of habeas has corpus challenging the validity of his incarceration pursuant to a state criminal indictment pending in the 180th District Court of Harris County, Texas. This action will be dismissed for failure to exhaust state court remedies. I. Claims and Case status Edwards seeks dismissal of a criminal indictment that has been filed against him. He claims that the indictment is deficient because it fails to set f6rth sufficient facts to constitute the offense he has been charged with under Texas law. The records of the Harris County District Clerk's Office indicate that Edwards is 1 Although Edwards named the State of Texas as the respondent, his custodian, Sheriff Garcia, is the appropriate respondent in this action. 28 U.S.C. § 2242j Braden v. 30th Jud. Cir. Ct. of Kentucky, 93 S.Ct. 1123, 1129 (1973) j see also Ladner v. Smith, 941 F.2d 356, 356 n.1 (5th Cir. 1991). ------------------- -- awaiting trial after having been charged with manufacturing and delivery of a controlled substance. See Website of the Office of Harris County District Clerk, www.hcdistrictclerk.com. Edwards's next setting for a district court hearing is February 10, 2014. Id. II. Analysis If Edwards were challenging a final state court conviction, his petition would be actionable under 28 U.S.C. provisions requiring exhaustion of seeking relief in federal court. 419-20 (5th Cir. petitioner must exhaust F.3d 146, 148 28 available (5th Cir. court remedies before U. S. C. § 2254 (b), a state remedies before habeas seeking See also Wion v. Quarterman, Id. , relief in federal court. state Nobles v. Johnson, 127 F.3d 409, Under 1997). 2254, which contains § 2009) ("Before pursuing federal 567 habeas relief, a petitioner is required to exhaust all state procedures for relief. ") , 2000) . citing Orman v. Cain, 228 F.3d 616, To exhaust his state remedies, 619-20 (5th Cir. the petitioner must fairly present the substance of his claims to the state courts, and the claims must have been fairly presented to the highest court of the state. Nobles, at 420, (1971) i 1990) . The comity. Coleman v. Thompson, 111 S.Ct. 2546, 2555 Quarterman, Collins, 919 Connor, 512-13 Quarterman, Myers v. citing Picard v. exhaustion requirement 522 F.3d 517, 491 F. 3d 213, 523 220 is F.2d 1074, based on (5th Cir. 2008), (5th Cir. 2007). -2- 92 1076 the S.Ct. 509, (5th Cir. precept of (1991) i Ries v. citing Moore v. Federal courts follow this principle to afford the state courts the first opportunity to address and correct the alleged violations of a petitioner's federal rights. Id. Therefore, a habeas petitioner must pursue his remedies in the state court system before presenting his constitutional claims in a federal petition. See Rhines v. Weber, 128 S.Ct. 1528, 1533 (2005) In this proceeding, proceeding, not a final Edwards is challenging a pending trial conviction. Pre-trial properly brought in federal court under 28 U.S.C. § petitions 2241. are Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998), citing Dickerson v. State of La., 816 F.2d 220, 224 (5th Cir. 1987) Al though section 2241 does not contain explicit language requiring exhaustion of available remedies, the United States Court of Appeals for the Fifth Circuit has imposed such a requirement on federal challenges to pre-trial proceedings. at 224. habeas Dickerson, 816 F.2d There is no record of an appeal or application for writ of corpus being filed by Edwards proceeding. See circumstances, which are not present in his criminal Absent www.hcdistrictclerk.com. state special in this action, a federal petition for a writ of habeas corpus may not be filed until state remedies have been exhausted. Dickerson, Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976) -3- at 225-27 i Brown v. Accordingly, this action will be dismissed without prejudice for failure of the petitioner to exhaust all available court remedies. Should Edwards file a notice of appeal, the court denies the issuance of a Certificate of Appealability for the reasons stated in this Memorandum Opinion and Order. Stringer,161 F.3d at 262j Whitehead, See 28 U.S.C. 157 F.3d at 386j § 2253j Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997). III. Conclusion The court ORDERS the following: 1. Edwards's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) is DISMISSED WITHOUT PREJUDICE for his failure to exhaust state court remedies. 2. The motion for continuance (Docket Entry No.3) is DENIED. 3. The motion to set aside indictment is DENIED. 4. A certificate of appealability is DENIED. (Docket Entry No.6) SIGNED at Houston, Texas, on this 31st day of December, 2013. ;' SIM LAKE UNITED STATES DISTRICT JUDGE -4-