Jones v. Stephens, Director TDCJ-CID, No. 4:2013cv03673 - Document 5 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER dismissing without prejudice 1 Petition for Writ of Habeaus Corpus, granting 2 APPLICATION to Proceed In Forma Pauperis, denying 4 Appeal Motion. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LORENZO DWAYNE JONES, HARRIS COUNTY JAIL NO. 00406866, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. § § § § § § § § § § § § § CIVIL ACTION NO. H-13-3673 MEMORANDUM OPINION AND ORDER Lorenzo Dwayne Jones (Harris County Jail No. 00406866) is an inmate incarcerated in the Harris County Jail in Texas. that he Criminal is scheduled to be transferred Correctional Justice for a writ of habeas the Institutions pursuant to a state court judgment. petition to He states Department Division Jones has filed a corpus under 28 U. S. C. of (TDCJ) federal § 2254 challenging the state court conviction while an appeal, challenging the same conviction, is currently pending. more fully below, For reasons explained this action will be dismissed for failure to exhaust state court remedies. I. Procedural History Jones states that he was tried by a jury in the 184th District Court in Harris County, Texas. He further states that the jury found him guilty of retaliation and that he was sentenced to four years in TDCJ. 1 Jones appealed the district court's judgment. Jones does not provide the outcome of the appeal because he states that he has "not received a decision yet." (Docket Entry No.1, p. 3) II. Under 28 U.S.C. Analysis 2254(b), § a habeas petitioner must exhaust available state remedies before seeking relief in federal court. See Nobles v. Johnson, See also Wion v. 127 F.3d 409, Quarterman, 419-420 567 F.3d 146, 148 (5th Cir. 1997). (5th Cir. 2009) ("Before pursuing federal habeas relief, a petitioner is required to exhaust all state procedures for relief."), Cain, 228 F.3d 616, 619-20 (5th Cir. 2000). citing Orman v. To exhaust his state remedies, the petitioner must fairly present the substance of his claims to the state courts, presented to the highest citing Picard v. Collins, 919 requirement Thompson, Connor, F.2d 1074, and the claims must have been fairly court of 92 S. 1076 is based on 111 S. Ct. 2546, the Ct. the state. 509, 512-13 (5th Cir. 1990). precept 2555 (1991) of Nobles, (1971); at 420, Myers v. This exhaustion comity. Coleman v. Federal courts follow this principle to afford the state courts the first opportunity "to iJones states in his petition that the docket numbers are "unknown" to him. (Docket Entry No.1, p. 2) He also fails to provide any cause number for his appeal. Id. at 3. -2- address and correct alleged violations of state prisoner's federal rights." Id. Therefore, a habeas petitioner must pursue his state court remedies before presenting his constitutional claims in a See Rhines v. federal petition. Weber, 128 S. Ct. 1528, 1533 (2005) . This court attempted to verify Jones' statements regarding his conviction and appeal but was unable to locate any records that relate to or support his claims. 2 Nevertheless, Jones states that he has "not received a decision yet" indicating that the purported appeal is still pending in a Texas court. indication that Moreover, there is no the matter has been considered by the highest court, the Texas Court of Criminal Appeals. This court should not adjudicate a federal writ application while habeas claims are under review by the state courts. Deters v. Collins, 985 F.2d 789, 797 (5th Cir. 1993) See ("Because Deters' state appeal is still pending, we would have to ignore the doctrine of federal-state comity by disrupting that ongoing state process. " ) Cir. 1972) i see also Williams v. Bailey, 463 F. 2d 247, 248 (5th ("federal disruption of the state judicial appellate process would be an unseemly and uncalled for interference that comity between our dual system forbids") . Jones must wait until 2The court investigated the web sites of the Court of Appeals for the First and Fourteenth Districts of Texas as well as the Texas Court of Criminal Appeals. The court also researched the Westlaw web site and found no cases with Jones as a defendant or party. -3- -------------_._- the state circumvent courts the issue state a decision. system and He cannot seek relief be in allowed to federal court without allowing the state courts an opportunity to rule on his claims. See Graham v. Collins, 94 F.3d 958, 969 (5th Cir. 1996); Deters, 985 F.2d at 792-794. See also Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) ("A federal habeas petition should be dismissed if state remedies have not been exhausted as to all of the federal court claims."); Bryant v. Bailey, 464 F.2d 560, 561 (5th Cir. 1972). remedies are If a federal habeas petition is filed while state still being pursued, the federal authority to dismiss the federal petition. court has the Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). Accordingly, this action will be dismissed without prejudice for failure of the petitioner to exhaust all available remedies on all his claims to the state's highest court of jurisdiction as required by the provisions of 28 U.S.C. Should Jones file a notice of appeal, criminal § 2254. the court denies the issuance of a Certificate of Appealability for the reasons stated in this Memorandum Opinion and Order. 157 F. 3d at 386; Murphy v. Johnson, 28 U.S.C. § 2253; Whitehead, 110 F. 3d 10, 11 (5th Cir. 1997) . III. 1. Conclusion The Application to Proceed Without Prepayment of Fees (Docket Entry No.2) is GRANTED. -4- 2. The petitioner's No.4) is DENIED. "Appeal Motion 3. Jones' 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. 4. A Certificate of Appealability is DENIED. 5. 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 to the respondent and the attorney general by providing one copy to the Attorney General of the State of Texas. ll (Docket Entry SIGNED at Houston, Texas, on this 20th day of December, 2013. 7 SIM LAKE UNITED STATES DISTRICT JUDGE -5-