Aguilera v. Davis, No. 4:2017cv02259 - Document 4 (S.D. Tex. 2017)

Court Description: MEMORANDUM OPINION AND ORDER denying 2 MOTION to Stay, 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)
Download PDF
Aguilera v. Davis Doc. 4 United States District Court Southern District of Texas ENTERED August 11, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MARIO EULIEN AGUILERA, TDCJ #2058935, Petitioner, v. LORIE DAVIS, Director Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. § § § § § § § § § § § § § David J. Bradley, Clerk CIVIL ACTION NO. H-17-2259 MEMORANDUM OPINION AND ORDER State inmate Mario Eulien Aguilera, also known as Mario Euliser Aguilera (TDCJ #2058935) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody under 28 U.S.C. § 2254 ("Petition") (Docket Entry No. 1), challenging conviction that was entered against him in 2016. a state court Acknowledging that he has not yet exhausted state court remedies, Aguilera has also filed a Motion to Stay and Abate [his] Title 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus ("Motion to Stay") (Docket Entry No. 2). After considering all of the pleadings and the applicable law, the court will deny the Motion to Stay and dismiss this case without prejudice for the reasons explained below. I. Procedural History On April 7, 2016, Aguilera was convicted of aggravated robbery Dockets.Justia.com and sentenced to life imprisonment by the 337th District Court of Harris County, Texas, in cause number 1476026. 1 Aguilera direct appeal, which remains pending in state court. v. State, No. Court 14-16-00303-CR (Tex. records from that App. -Houston proceeding reflect filed a See Aguilera [14th Dist]). that Aguilera's appointed counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967) (an "Anders brief"), certifying that there are no non-frivolous issues to raise. 2 On November 1, 2016, the court of appeals granted Aguilera's request for leave to review the record and file a pro se brief, which he has done. 3 There has been no decision yet in that appeal. 4 On July 24, 2017, the court received Aguilera's Petition for habeas corpus relief under 28 U.S.C. Aguilera on July 20, "ineffective 2017. 5 assistance of § 2254, which was executed by The Petition raises one claim for trial counsel" and "ineffective assistance of appellate counsel." 6 1 one claim for Aguilera provides Petition, Docket Entry No. 1, p. 2. 2 See Texas Judicial Branch, Fourteenth Court of Appeals, located at http://www.search.txcourts.gov (last visited August 10, 2017). 5 Petition, Docket Entry No. 1, p. 10. 6 Id. at 6. -2- no facts in support of either claim. 7 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." § 22 54 (b) ( 1) (A) . 28 u.s.c. Thus, a petitioner "must exhaust all available state remedies before he may obtain federal habeas corpus relief." Sones v. Hargett, 61 F.3d 410, exist there only where is 414 an (5th Cir. 1995). absence of an Exceptions 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). 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." 484, 490-91 (5th Cir. 2006) 617, 620 (1986)). Moore v. Quarterman, 454 F.3d (quoting Vasquez v. Hillery, 106 S. Ct. A federal habeas petitioner shall not be deemed to have exhausted the remedies available in the state courts "if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). In Texas a criminal defendant may challenge a conviction in two ways: -3- (1) the petitioner may file a direct appeal followed, if necessary, by a petition for discretionary review in the Texas Court of Criminal Appeals; and/or (2) he may file a petition for a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure in the convicting court, which is transmitted to the Texas Court of Criminal Appeals once the trial court determines whether findings are necessary. Busby v. See TEX. CODE CRIM. PROC. art. 11.07 Dretke, 359 F.3d 708, 723 (5th Cir. 3(c); see also § 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."). It is evident that Aguilera's direct appeal remains pending before an intermediate state appellate court and that the Texas Court of Criminal Appeals has not yet had any opportunity address the issues raised in the pending petition. to Because the avenues of direct appeal and state habeas review remain available, Aguilera does not satisfy any statutory exception to the exhaustion doctrine. Aguilera concedes that he has not yet exhausted available remedies and he asks the court to stay this case while he does so. Requests to stay a federal habeas proceeding are governed by the criteria found in Rhines v. Weber, 125 S. Ct. 1528 (2005). In that case, stay a the Supreme Court held that district courts may "mixed" petition, containing both exhausted and unexhausted claims, only in "limited circumstances." -4- Id. at 1534. At a minimum, a petitioner must show good cause for his failure to exhaust. The petition filed in this case is not mixed; unexhausted. Id. it is wholly Moreover, Aguilera does not demonstrate the requisite good cause for his failure to exhaust state court remedies under the criteria found in Rhines or show that a stay is warranted under the circumstances limitations on of federal this The case. habeas one-year review has not statute of commenced to run because Aguilera's conviction is not yet "final" and his time to pursue § direct review 2244 (d) (1) (A). has not Provided yet that he acts u.s.c. See with 28 due expired. diligence, Aguilera should have ample time under the governing statute of limitations in which to seek habeas relief in federal court in the event of an unfavorable ruling on his pending state court appeal and any prospective state court habeas corpus application, which would further toll the statute of limitations for as long as it is pending. 28 U.S.C. § 2244 (d) (2). Aguilera's request for a Accordingly, the court will deny stay and dismiss this action without prejudice for lack of exhaustion. 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. § 2253(c) (2), which requires -5- constitutional a petitioner to demonstrate court's "that assessment 'reasonable of the jurists would constitutional find claims the district debatable wrong.'" Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) Slack v. McDaniel, 120 S. controlling standard this Ct. 1595, requires a 1604 (2000)). or (quoting Under the petitioner to show "'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 were "adequate to deserve encouragement to proceed further."'" 1029, 1039 (2003). Miller-El v. Cockrell, 123 S. Ct. Where denial of relief 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 the district court was correct in its procedural ruling." Slack, 120 S. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). See After careful review of the pleadings and the applicable law, the court concludes that reasonable procedural ruling in petitioner states a jurists would not debate whether any this valid case claim was for correct relief. certificate of appealability will not issue. -6- or whether Therefore, the a IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. 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. 2. The petitioner's motion to stay this abeyance (Docket Entry No. 2) is DENIED. 3. A certificate of appealability is DENIED. case in The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this the/H~th day of~~ 2017. UNITED -7- DISTRICT JUDGE