United States District Court, E.D. Tennessee
A. VARLAN UNITED STATES DISTRICT JUDGE.
a pro se prisoner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which Petitioner brings
several claims of ineffective assistance of trial and
post-conviction counsel [Docs. 1, 1-1, and 1-2]. Now before
the Court is Respondent's response to the petition, which
notes that Petitioner, through counsel, has a second motion
for new trial pending with the state criminal court and that
a hearing on this motion was set for May 15, 2019 [Doc. 13].
Based on these allegations, Respondent requests that the
Court stay this matter pending Petitioner's resolution of
this second motion for new trial with this state court or
dismiss the § 2254 without prejudice due to
Petitioner's failure to exhaust his state-court remedies
[Id.]. Petitioner did not file a response to
Respondent's motion to dismiss, and the time for doing so
has passed. E.D. Tenn. L.R. 7.1. As such, Petitioner has
waived any opposition thereto. E.D. Tenn. L.R. 7.2;
Elmore v. Evans, 449 F.Supp. 2, 3 (E.D. Tenn. 1976),
aff'd 577 F.2d 740 (6th Cir. 1978). For the
reasons set forth below, this action will be dismissed
without prejudice due to Petitioner's failure to exhaust
his available state-court remedies.
the court may grant habeas relief to a state prisoner, the
prisoner must exhaust remedies available in the state courts.
28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires
a petitioner to “fairly present” federal claims
so that state courts have a “fair opportunity” to
apply controlling legal principles to the facts bearing upon
a petitioner's constitutional claim. See
O'Sullivan, 526 U.S. at 842; Picard v.
Connor, 404 U.S. 270, 275-77 (1971) (cited by Duncan
v. Henry, 513 U.S. 364, 365 (1995) and Anderson v.
Harless, 459 U.S. 4, 6 (1982)).
fulfill the exhaustion requirement, a petitioner must have
fairly presented his federal claims to all levels of the
state appellate system, including the state's highest
court. Duncan, 513 U.S. at 365-66; Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v.
Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
“[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process.” O'Sullivan, 526 U.S. at
845. The district court can and must raise the exhaustion
issue sua sponte, when it clearly appears that
habeas claims have not been presented to the state courts.
See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.
1987); Allen, 424 F.2d at 138-39.
March 27, 2008, Petitioner was convicted of first-degree
murder in the criminal court of Knox County, Tennessee [Doc.
1 p. 1]. Petitioner filed a motion for new trial, which the
trial court denied due to late filing [Docs. 11-20 and
11-21]. Petitioner appealed his convictions, asserting three
claims of trial-court error, including the claim that the
trial court erred in determining that it lacked jurisdiction
to hear Petitioner's motion for new trial, and a claim
that the verdict was against the weight of the evidence [Doc.
11-16 p. 3, 40-60]. The Tennessee Criminal Court of Appeals
(“TCCA”) affirmed Petitioner's conviction and
sentence. State v. Galindo, No.
E2009-00549-CCA-R3-CD, 2010 WL 4684469 (Tenn. Crim. App. Nov.
subsequently filed a petition for post-conviction relief
asserting various claims, including one claim that he was
denied effective assistance of counsel [Doc. 11-22 p. 5-6,
11-14]. The post-conviction court granted this petition in
part by allowing Petitioner to file a motion for new trial
[Doc. 11-25], which Petitioner's counsel filed [Doc.
13-1]. This second motion for new trial was still pending as
of January 28, 2019, at which time it had a hearing set for
May 5, 2019 [Docs. 13-1 and 13-2].
the record does not reflect the result of the hearing on
Petitioner's second motion for new trial that was
scheduled for May 5, 2019, it is apparent that Petitioner has
not exhausted the claims in his § 2254 petition, as he
has not “give[n] the state courts one full opportunity
to resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process.” O'Sullivan, 526 U.S. at 845.
Specifically, Petitioner did not present the claims in his
§ 2254 petition to the TCCA in his direct appeal, and
nothing in the record suggests that Petitioner has filed an
appeal of any denial of relief relating to his petition for
post-conviction relief at this time. Therefore, this §
2254 petition will be DISMISSED without
prejudice due to Petitioner's failure to exhaust
state-court remedies. Rose v. Lundy, 455 U.S. 509
Court must now consider whether to issue a certificate of
appealability (“COA”), should Petitioner file a
notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a
petitioner may appeal a final order in a habeas proceeding
only if he is issued a COA, and a COA may only be issued
where a Petitioner has made a substantial showing of the
denial of a constitutional right. 28 U.S.C. §
2253(c)(2). When a district court denies a habeas petition on
a procedural basis without reaching the underlying claim, a
COA should only issue if “jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Court finds that
jurists of reason would not debate the Court's finding
that Petitioner has not exhausted his state court remedies.
Court CERTIFIES that any appeal from this
action would not be taken in good faith and would be totally
frivolous. Fed. R. App. P. 24.