Gorden v. Davis, No. 4:2018cv00343 - Document 19 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting 15 MOTION for Summary Judgment 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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Gorden v. Davis Doc. 19 United States District Court Southern District of Texas ENTERED July 30, 2018 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION BRUCE EDWARD GORDEN, TDCJ #02047079, § § § § § § § § § § § § § Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. David J. Bradley, Clerk CIVIL ACTION NO. H-18-0343 MEMORANDUM OPINION AND ORDER The petitioner, Bruce Edward Gorden (TDCJ #02047079), is currently incarcerated by the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ"). Gorden has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") (Docket Entry No. 1), challenging a conviction from Harris County. The respondent has answered with a Motion for Summary Judgment with Brief in Support ("Respondent's MSJ") (Docket Entry No. 15), arguing that the Petition must be dismissed because the claims are unexhausted. his time to do pleadings, so has the exhibits, Gorden has not filed a response and expired. After considering all and the applicable law, of the the court will grant Respondent's MSJ and dismiss this action for the reasons explained below. Dockets.Justia.com I. Procedural History On January 28, 2016, a jury in the 337th District Court for Harris County, Texas, found Gorden guilty of aggravated assault with a deadly weapon and sentenced him to 32 years' imprisonment in Cause No. 147369701010. 1 On direct appeal, Gorden challenged the sufficiency of the evidence and the trial court's admission of an impermissibly suggestive photo line-up. 2 An intermediate court of appeals rejected both arguments and affirmed the conviction in an unpublished opinion. See Gorden v. State of Texas, No. 01-16- 00088-CR, 2016 WL 6803354 (Tex. App.- Houston [1st Dist.] Nov. 17, Gorden did not file a timely petition for discretionary 2016). review by the Texas Court of Criminal Appeals. 3 In a seeks Petition that is dated January 30, federal U.S. C. § habeas 2254, corpus arguing that review of his he 2018, 4 Gorden now conviction under is entitled to relief for 28 the following reasons: 1. He was denied effective assistance of counsel when his trial attorney failed to subpoena two eyewitnesses (Rosalind Wade and Joyce Joseph-Gorden) . 2. The evidence was insufficient to support his conviction. 1 Petition, Docket Entry No. 1, pp. 2-3; Judgment of Conviction by Jury, Docket Entry No. 16-6, p. 9. 2 Appellant's Brief, Docket Entry No. 16-21, p. 10. 3 Petition, Docket Entry No. 1, p. 3. 4 Id. at 11. -2- 3. The trial court erred by overruling his objection to the impermissibly suggestive photo line-up that was used for his identification. 4. The prosecutor knowingly used perjured testimony from a police officer. 5. He was denied effective assistance of counsel on direct appeal when his attorney failed to inform him of his right to file a petition for discretionary review. 5 Noting that the Texas Court of Criminal Appeals recently reinstated Gorden's right to file an out-of-time petition for discretionary review, the respondent argues that his conviction is not final and that the pending Petition should be dismissed without prejudice for lack of exhaustion. 6 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). 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, 414 (5th Cir. 1995). requirement "is federal-state not comity jurisdictional, designed to but give The exhaustion reflects the State a policy an 5 Petition, Docket Entry No. 1, pp. 6-7. 6 Respondent's MSJ, Docket Entry No. 15, pp. 10-12. -3- of 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). 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 to presented." criminal raise, by any available 28 U.S.C. § 2254(c). defendant must procedural options: (1) complete procedure, the question To exhaust remedies in Texas a one or both of the following 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. See Tex. Code Crim. Proc. art. 11.07 § 3(c); see also Busby v. Dretke, 359 F.3d -4- 708, 723 (5th Cir. 2004) ("Habeas petitioners must exhaust state remedies by pursuing their claims through one complete cycle of either direct state appeal or post-conviction collateral proceedings."). Records provided by the respondent reflect that Gorden attempted to raise his claims for review before the Texas Court of Criminal Appeals in a state habeas corpus application under Article 11.07, but that his application was "dismissed" on January 10, 2018, for failure to comply with procedural filing requirements. 7 Because this application was not presented to the state courts in a procedurally proper manner, there was no final disposition of the proposed claims on the merits and the exhaustion requirement is not satisfied. See McGee v. Estelle, 704 F.2d 753, 678 (5th Cir. 1983) (citing Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982); Brown v. Estelle, 530 F.2d 1280, 1283-84 parte Torres, that, 943 S.W.3d 469, 472 (5th Cir. 1976)); see also Ex (Tex. Crim. App. 1997) (holding in Texas, the "denial" of a habeas application signifies a "final disposition" "dismissal" means or the adjudication application on was the merits declined while "for a reason unrelated to the merits"). Gorden promptly filed another state habeas application, which the Texas Court of Criminal Appeals granted, 2018, allowing 7 Gorden to file Action Taken on Writ No. an in part, out-of-time on June 6, petition for 87,748-02, Docket Entry No. 16-30, p. 1. -5- discretionary review. 8 Until the Texas Court of Criminal Appeals adjudicates Gorden's out-of-time petition for discretionary review, his judgment of conviction is not final for purposes of seeking federal habeas corpus review. Ct. 681, 686 (2009) See Jimenez v. Quarterman, 129 S. ("We hold that, where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review his judgment is not yet 'final' for purposes of [28 U.S.C.] § 2244 (d) (1) (A)."). After the Texas Court of Criminal Appeals has decided Gorden's out-of-time petition for discretionary review, he will have the opportunity to pursue state habeas review of his remaining claims, if necessary, by filing another application under Article 11.07. Because the Texas Court of Criminal Appeals has not yet addressed the merits of all of his claims, exhaustion requirement. 9 Gorden has not yet satisfied the Under these circumstances, comity requires this court to defer until the Texas Court of Criminal Appeals has completed its review. Accordingly, the court will grant Respondent's MSJ and 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 8 0pinion, Docket Entry No. 16-45, pp. 1-2. 9 Because Gorden has been granted leave to file an out-of-time petition for discretionary review, his ineffective-assistance claim (Claim 5) against his appellate attorney is now moot. -6- 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 constitutional right," 28 U.S.C. demonstrate "that 2253(c) (2), § reasonable would district Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) controlling standard, S. Ct. 1595, claims the wrong." 120 constitutional find assessment McDaniel, the jurists court's Slack v. of which requires a petitioner to 1604 debatable (2000)). or (quoting Under the this requires a 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 encouragement to proceed further.'" Ct. 1029, 3383, 1039 3394 (2003) n.4 'adequate Where deserve Miller-El v. Cockrell, 123 S. (quoting Barefoot v. ( 1983) ) . to denial of Estelle, relief 103 S. is based Ct. 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." the district court was Slack, 120 S. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without Alexander v. reasons set requiring Johnson, forth 211 above, further briefing F.3d 895, this court 898 or argument. (5th Cir. concludes that 2000). See For jurists of reason would not debate that the petitioner has not yet exhausted -7- available state court remedies or that the Petition is premature. Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The respondent's Motion for Summary (Docket Entry No. 15) is GRANTED. Judgment 2. Bruce Edward Gorden's Petition for a Writ of Habeas Corpus by a Person in State Custody (Docket Entry No. 1) is DISMISSED without prejudice. 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 the 3o4h day of ~cy, 2018. /-g:z . SIM LAKE UNITED STATES DISTRICT JUDGE -8-
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