Julian v. Thaler Julian v. Thaler (S.D. Tex., 2012)

Copy Citation

RODERICK ST. JULIAN, Petitioner, v. RICK THALER, Respondent.

CIVIL ACTION H-11-3441

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: March 28, 2012

        Petitioner, a state inmate proceeding pro se, filed this section 2254 habeas petition challenging his 2008 conviction for possession of a controlled substance. Respondent filed a motion to dismiss based on failure to exhaust (Docket Entry No. 10). Despite expiration of a reasonable period of time in excess of forty days, petitioner has failed to respond, or request additional time to respond, to the motion to dismiss.

        Based on consideration of the pleadings, the motion, the record, and the applicable law, the Court GRANTS the motion to dismiss and DISMISSES this case for the reasons shown below.

        Petitioner was convicted of possession of a controlled substance (cocaine) and sentenced to five years incarceration. The conviction was affirmed on appeal, and discretionary review was refused. St. Julian v. State, No. 14-08-00697-CR (Tex. App. - Houston 14th Dist. 2010, pet. ref'd). Petitioner did not pursue state habeas relief.

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        In the instant federal petition, petitioner claims that the trial court's denial of his pretrial suppression motion violated his fourth amendment rights. He also raises a claim for prosecutorial vindictiveness. Respondent argues that the petition should be dismissed as a mixed petition, as petitioner failed to include the vindictiveness claim in his petition for discretionary review and did not raise it in a state habeas proceeding. Petitioner has not responded to respondent's arguments and does not contest the motion to dismiss.

        In the first two of his three habeas grounds, petitioner claims that the trial court's denial of his pretrial motion to suppress violated his fourth amendment rights because police officers unlawfully detained him without reasonable suspicion.

        In rejecting these issues on appeal, the intermediary appellate court held as follows:

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St. Julian, at *2-3 (citations omitted).

        The Supreme Court held in Stone v. Powell, 428 U.S. 465 494 (1976), that where a defendant has a full and fair opportunity to litigate fourth amendment claims in state court, he may not be granted federal habeas relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this case, it is clear that petitioner had a full and fair opportunity to litigate his fourth amendment claims in state court. He filed a motion to suppress in the trial court, which the trial court set for hearing, heard evidence, and ultimately denied, and he appealed the denial of the motion to suppress to the state court of appeals. Because petitioner plainly had a full and fair opportunity to litigate his fourth amendment claims concerning the allegedly unlawful detention in the state trial and appellate courts, his claim for federal habeas relief on this ground is barred by the doctrine of Stone v. Powell, and no cognizable federal habeas claim is raised by petitioner's first two habeas grounds. These two grounds are DISMISSED WITH PREJUDICE for failure to state a cognizable federal habeas ground for relief.

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        In his third habeas ground, petitioner claims that he was denied due process because his prosecution was based in prosecutorial vindictiveness. In its analysis of this issue on direct appeal, the Fourteenth Court of Appeals held as follows:

St. Julian, at *3 (citations omitted).

        The law is well settled that a state prisoner must exhaust all available state court remedies before he can obtain federal habeas relief unless circumstances exist which render the state corrective process ineffective to protect the prisoner's rights. 28 U.S.C. §§ 2254(b), (c). In order to exhaust, a petitioner must "fairly present" all of his claims to the state court. Further, it is necessary for the claim presented to the federal court to have first been presented to and ruled on by the highest state court, which in Texas is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985). Here, petitioner

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did not pursue his vindictive prosecution issue in his petition for discretionary review, and did not pursue state habeas relief. Accordingly, the issue has not been exhausted and may be dismissed for this reason.

        Because this third, unexhausted ground is the sole cognizable federal habeas claim raised, the petition stands not as a "mixed petition" but rather, as an unexhausted petition. As petitioner has not yet pursued state habeas relief, an avenue for state relief remains available to him . Accordingly, this petition must be DISMISSED for failure to exhaust.

        Petitioner's first and second habeas grounds are DISMISSED WITH PREJUDICE for failure to state a cognizable federal habeas claim. Respondent's motion to dismiss (Docket Entry No. 10) is GRANTED, and this habeas petition is DISMISSED WITHOUT PREJUDICE for failure to exhaust the sole federal habeas claim raised in the petition. Any and all pending motions are DENIED AS MOOT. A certificate of appealability is DENIED.

        Signed at Houston, Texas on March 28, 2012.

        ______________        Gray H. Miller        United States District Judge