Brown v. Stephens, No. 4:2016cv00804 - Document 23 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER granting 19 MOTION to Dismiss 3 Document for Failure to Exhaust State Court Remedies with Brief in Support, dismissing without prejudice 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Brown v. Stephens Doc. 23 United States District Court Southern District of Texas ENTERED August 30, 2016 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION HAROLD BROWN, TDCJ #1916995, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. David J. Bradley, Clerk § § § § § § § § § § § § CIVIL ACTION NO. H-16-0804 MEMORANDUM OPINION AND ORDER Harold Brown (TDCJ #1916995) has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") Entry No. 1), challenging a state court conviction. (Docket Pending before the court is Respondent Davis's Motion to Dismiss for Failure to Exhaust State Court Remedies with Brief in Support No. 19). Brown has filed Petitioner's Reply to the Director's Reply (Docket Entry No. 21). the law, (Docket Entry After considering the pleadings and the court will grant the respondent's motion and will dismiss this action for the reasons explained below. I. Procedural History A local grand jury returned an indictment charging Brown with capital murder in Harris County cause number 1362106. 1 1 Brown was Indictment, Docket Entry No. 17-12, p. 21. Dockets.Justia.com charged with shooting and killing altercation at a local nightclub. 2 multiple people during an On February 17, 2014, a jury in the 208th District Court for Harris County found Brown guilty as charged. 3 The trial court sentenced him to life without parole. 4 On direct appeal Brown argued that the trial court erred as follows: (1) by admitting an in-court identification by a witness; (2) by admitting Brown's statement to police; and (3) by including an instruction in the jury charge on voluntary intoxication. 5 The intermediate court of appeals rejected these claims and affirmed the conviction in an unpublished opinion. No. 14-14-00165-CR 2015). 6 The Texas (Tex. Houston App. Court of Criminal See Brown v. [14th Dist.] Appeals Aug. refused petition for discretionary review on November 18, 2015. State, 18, Brown's See Brown v. State, PDR No. 1192-15. 7 On March 18, 2016, Brown executed the pending Petition, seeking relief from his conviction in Harris County cause number 1362106. 8 Brown contends that he is entitled to relief for the 2 See id.; see also Memorandum Opinion, Docket Entry No. 17-7, p. 2 (summarizing the underlying facts). 3 Judgment of Conviction By Jury, Docket Entry No. 17-15, p. 51. 4 Id. 5 Appellant's Brief, Docket Entry No. 17-3, p. 3. 6 Memorandum Opinion, Docket Entry No. 17-7, pp. 1-13. 7 Electronic Record, Docket Entry No. 17-1, p. 1. 8 Petition, Docket Entry No. 1, p. 11. -2- following reasons: ( 1) the "charging and arrest instrument" is null and void; (2) the District Attorney's office illegally charged him with capital murder pursuant to a void charging and arrest instrument; (3) the prosecutor committed misconduct by covering up his unlawful arrest; ( 4) the (5) the state used illegal indictment is investigative methods witnesses to identify him as the perpetrator; lacked jurisdiction; fatally (6) defective; to manipulate the trial judge (7) defense counsel conspired with the state to violate his civil rights; and (8) before an impartial fact-finder. 9 he was denied a fair trial The respondent moves to dismiss the Petition because Brown has failed to exhaust available state court remedies with respect to these claims. II. Under the governing Discussion federal habeas corpus statutes "[a] n application for a 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 the applicant has exhausted the remedies available in the courts of the State." § 2254(b) (1) (A). state remedies relief." Id. u.s.c. Thus, a petitioner "must exhaust all available before he may obtain federal habeas [corpus] Sones v. Hargett, 61 F.3d 410, 414 (5th Cir. 1995). exhaustion 9 28 requirement "is not jurisdictional, at 6-8. -3- but The reflects a policy of federal-state comity designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." 490-91 (5th Cir. 2006) 386 (5th Cir. 2003) Moore v. Quarterman, 454 F.3d 484, (quoting Anderson v. Johnson, 338 F.3d 382, (internal citations and quotations omitted)). Exceptions exist only where there is an absence of an available state corrective process or where circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. 2254 (b) (1) (B) (i) and (ii). § To exhaust his state remedies under the applicable statutory framework, a habeas petitioner must fairly present "the substance of his claim to the state courts." Moore, 454 F. 3d at 491 (quoting Vasquez v. Hillery, 106 S. Ct. 617, 620 (1986)). petitioner shall not be deemed to have A federal habeas exhausted the remedies available in the state courts "if he has the right under the law of the State presented." to raise, 28 U.S.C. by any § available 2254 (c). the question In Texas a criminal defendant may challenge a conviction in two ways: file a direct appeal followed, procedure, (1) the petitioner may if necessary, by a petition for discretionary review in the Texas Court of Criminal Appeals; and/or (2) he may file Article 11. 07 convicting of court, a petition for a the Texas which is Code writ of habeas corpus under of Criminal transmitted to Procedure the Texas in Court the of Criminal Appeals once the trial court determines whether findings -4- are necessary. See Tex. Code Crim. also Busby v. Dretke, 359 F.3d 708, Proc. art. 723 11.07 (5th Cir. 3(c); see § 2004) ("Habeas petitioners must exhaust state remedies by pursuing their claims through one complete cycle of either state direct appeal or post-conviction collateral proceedings."). Although Brown filed a state habeas corpus application in an effort to raise his pending claims, 10 the application was summarily dismissed for procedural reasons without an adjudication on the merits because Brown filed it while his direct appeal was still pending . 11 Because Brown's application was dismissed for procedural reasons unrelated to the merits of his claims he is not precluded from filing another state habeas application. Santana, 227 S.W.3d 700, 703 (Tex. Crim. App. 2007) between a denial of relief or final See Ex parte (distinguishing disposition that bars a subsequent application and a dismissal that is unrelated to the merits of the claims) (citing Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997)). Brown has not re-submitted a state habeas corpus application in a procedurally proper manner or afforded the state courts an opportunity to address the merits of his claims. Because state process remains available, Brown does not satisfy any statutory exception to the exhaustion doctrine. Comity requires 10 Application for a Writ of Habeas Corpus, Docket Entry No. 1816, pp. 5-27. 11 Action Taken on Writ No. 84,516-01, Docket Entry No. 18-12, p. 1. -5- this court to defer until merits of Brown's claims. the state courts have addressed the Accordingly, the court will grant the respondent's motion and will dismiss this case as premature. III. Certificate of Appealability Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a right," 28 U.S.C. demonstrate "that 2253 (c) (2), § reasonable jurists would find the Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) controlling standard S. this Ct. 1595, requires a 1604 claims district wrong." 120 constitutional petitioner to assessment McDaniel, the which requires a court's Slack v. of constitutional debatable (2000)). petitioner (quoting Under to or show the "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented encouragement to proceed further.'" S. Ct. 1029, 1039 (2003) were 'adequate Miller-El v. Where denial of relief to deserve Cockrell, 123 is based on procedural grounds the petitioner must show not only that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," but also that they "would find it debatable whether correct in its procedural ruling." -6- the district court Slack, 120 S. Ct. at 1604. was A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. See Alexander v. For reasons set Johnson, 211 F.3d 895, forth above, this 898 (5th Cir. court concludes that 2000). jurists of reason would not debate that the petitioner has not yet exhausted available state court remedies. Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. Respondent Davis's Motion to Dismiss for Failure to Exhaust State Court Remedies (Docket Entry No. 19) is GRANTED. 2. The Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DISMISSED without prejudice for lack of exhaustion. 3. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 30th day of August, 2016. SIM LAKE UNITED STATES DISTRICT JUDGE 7' -7-
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