Hinton v. Stephens, No. 4:2016cv01054 - Document 19 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part 18 MOTION to Stay & Administratively Close the Proceedings or, Alternatively, to Dismiss the Petition as Unexhausted, dismissing 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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Hinton v. Stephens Doc. 19 United States District Court Southern District of Texas ENTERED October 19, 2018 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION WALTER HINTON, JR., TDCJ #1839405, Petitioner, V. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. § § § § § § § § § § § § § David J. Bradley, Clerk CIVIL ACTION NO. H-16-1054 MEMORANDUM OPINION AND ORDER State inmate Walter Hinton, Jr., has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody under 28 U.S.C. § 2254 murder ("Petition") conviction (Docket Entry No. entered against 1), him seeking relief from a in Harris No. 1316867, which resulted in a life sentence. County Cause Pending before the court is Respondent's Motion to Stay and Administratively Close the Proceedings or, Alternatively, Unexhausted ("Respondent's Motion") to Dismiss the Petition (Docket Entry No. 18) . has not filed a response, and his time to do so has expired. as Hinton After considering all of the pleadings and the applicable law, this case will be dismissed without prejudice for the reasons explained below. Dockets.Justia.com I. On Harris Background and Procedural History February 13, County imprisonment. 1 cause 2013, Hinton was number convicted of 1316867 and murder sentenced to in life Hinton's conviction was affirmed on direct appeal in an unpublished opinion. See Hinton v. State, No. 14-13-00116-CR (Tex. App.- Houston [14th Dist.] April 17, 2014). The Texas Court of Criminal Appeals refused his petition for discretionary review on July 23, writ of 2014. 2 Because Hinton did not file a petition for a certiorari with the United States Supreme conviction became final 90 days later on October 21, SuP. CT. R. 13(a). Court, his 2014. See That date triggered the statute of limitations on federal habeas corpus review, which expired one-year later on October 21, 2015. See 28 u.s.c. § 2244 (d) (1) (A). Hinton filed an application for a writ of habeas corpus with the trial court conviction under Article Procedure. 3 collateral 11.07 Under 28 U.S.C. "properly filed" 2015, on October 15, § application review limitations period. is pending of seeking the Texas relief Code of from his Criminal 2244(d) (2), the time during which a for state habeas shall not be corpus counted or other toward the Thus, the statute of limitations is presently tolled while Hinton's state habeas application is pending. 1 Petition, Docket Entry No. 1, p. 2. 2 Id. at 3. 3 Id. at 11; Motion For Stay of Proceedings, p. 3. -2- Docket Entry No. 3, On April 8, 2016, Hinton executed the pending federal habeas Petition under 28 U.S.C. § 2254, raising eleven grounds for relief: 1. Hinton's right to due process was violated when the prosecutor knowingly presented false testimony at trial. 2. Hinton was denied "any assistance" by his appellate counsel for purposes of a motion for new trial. 3. The trial court failed to apply the law of selfdefense to the facts or add a lesser-included offense to the jury charge. 4. The state presented "No Evidence at trial" failed to prove all essential elements of charged offense. 5. Hinton was denied effective assistance of counsel at trial when his attorney failed to request an instruction on "Causation" in the jury charge. 6. Hinton was denied effective assistance of counsel at trial when his attorney allowed the prosecutor to use "Privileged Testimony." 7. Hinton was denied effective assistance of counsel at trial when his attorney failed to suppress testimony from jailhouse informant Brandon Bridges. 8. Hinton was denied effective assistance of counsel when his attorney failed to interview "Moeshe sister's Boyfriend," whose testimony would have resulted in a different verdict. 9. Hinton was denied effective assistance of counsel at trial when his attorney failed to request an instruction on the lesser-included offense of aggravated assault in the jury charge. 10. Hinton was denied effective assistance of counsel during the punishment phase of the trial when his attorney failed to argue or present mitigating evidence of manslaughter. -3- and the 11. Hinton was denied effective assistance of counsel at trial when his attorney failed to subpoena Terrell Robinson as a material witness. 4 At Hinton's request the court stayed this federal habeas proceeding on April 20, 2016, while Hinton pursued his state court remedies. 5 The court did not, however, administratively close the case. On March 7, 2018, the court issued an Order directing Hinton to provide a status report on his state habeas corpus proceeding. 6 After Hinton advised the court that his state habeas application had been pending for two years with no requested an answer from the respondent. 8 activity, 7 the court Noting that the state courts are actively litigating Hinton's pending application for relief under Article 11.07, continue the alternatively, exhaustion. stay and dismiss the respondent now moves to either administratively the case without close the prejudice for case or, lack of 9 II. Discussion Under the governing federal habeas corpus statutes, " [a] n application for a writ of habeas corpus on behalf of a person in 4 Petition, Docket Entry No. 1, pp. 10, 13-19. 5 0rder to Stay, Docket Entry No. 4. 6 0rder, Docket Entry No. 5, p. 2. 7 Reply to Court's Order, Docket Entry No. 8, pp. 1-2. 8 0rder for an Answer, Docket Entry No. 9. 9 Respondent's Motion, Docket Entry No. 18, pp. 1-2, 6. -4- 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 § 2254(b) (1) (A) state remedies relief." courts of the State." 2 8 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 requirement "is policy of federal-state not jurisdictional, comity designed to but give The reflects the State a 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 available State corrective process or circumstances exist that render such process ineffective to protect the rights of the applicant. § See 28 U.S.C. 2254 {b) (1) (B). Hinton's state habeas application remains pending before the trial court, and the Texas Court of Criminal Appeals has not yet had an opportunity to address the issues raised in the pending petition. The court takes judicial notice of records from the Harris County District Clerk's Office, Respondent's Motion, 10 which are referenced in confirming that Hinton's state habeas corpus application is under active consideration by the trial court, which 10 Respondent's Motion, Docket Entry No. 18, pp. 1-2, 5. -5- has issued affidavits several from Hinton's criminal case. 11 delay" orders in the past attorneys few months and others to obtain involved in his Because the record does not disclose "inordinate that is "wholly and completely the fault of the state," exhaustion cannot be excused. (5th Cir. 1993) Deters v. Collins, 985 F.2d 789, 796 (citations omitted). Under these circumstances, comity requires this court to defer until after the state courts have completed review of necessarily depend on the petitioner's fact-finding by the claims, state which habeas will corpus court. Although the respondent proposes a stay, this case has been stayed already and has been pending on the court's active docket for over two years. The Supreme Court has commented that an unexhausted habeas petition "should not be stayed indefinitely." Rhines v. Weber, 125 S. statute of limitations, Ct. 1528, 1535 (2005). Mindful of the the court will dismiss the case without prejudice to the petitioner seeking reinstatement in the event that the Texas Court of Criminal Appeals issues an adverse decision on his pending state application. 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 11 See Office of the Harris County District Clerk, located at: http://www.hcdistrictclerk.com (last visited Oct. 18, 2018). -6- entering a final order that is adverse to the petitioner. A certificate of appealability will not issue unless the petitioner shows that "jurists of reason could disagree with the [reviewing] court's resolution of his constitutional claims or that jurists could conclude the issues presented encouragement to proceed further." 773 (2017) are adequate to deserve Buck v. Davis, 137 S. Ct. 759, (citation and internal quotation marks omitted). denial of relief is based on procedural grounds, Where 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 the district court was correct in its procedural ruling." Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). A district court may deny a certificate of appealability, sua sponte, without Alexander v. reasons set requiring Johnson, further 211 F.3d 895, forth above, this briefing 898 or argument. (5th Cir. court concludes that 2000). See For jurists of reason would not debate whether any procedural ruling in this case was correct. Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. Respondent's Motion to Stay and Administratively Close the Proceedings is DENIED, but the Motion to Dismiss the Petition as Unexhausted is GRANTED -7- without prejudice for Entry No. 18). lack of exhaustion (Docket 2. Walter Hinton, Jr.'s, 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. To proceed with his claims for federal relief Hinton is directed to file a written "Motion to Reinstate" this case no later than thirty (30) days after the Texas Court of Criminal Appeals issues an adverse decision on his pending state court habeas corpus application in Harris County Cause No. 1316867. The court will then reopen this case and issue a new briefing schedule. 4. 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 19th day of October, 2018. UNITED STATES DISTRICT JUDGE -8-
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