Harper v. Lumpkin

• Court: District Court, S.D. Texas
• Decided: January 31, 2023
• Docket: 4:22-cv-01314
• Status: Unknown

Opinion

□ Southern District of Texas ENTERED January 31, 2023 IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TIMOTHY JEREMY HARPER, § § Petitioner, § § Vv. § CIVIL ACTION NO. H-22-1314 § BOBBY LUMPKIN, § § Respondent. §

MEMORANDUM OPINION AND ORDER Petitioner, a state inmate proceeding pro se, filed a habeas petition under 28 U.S.C. § 2254, challenging the denial of his release to parole. Respondent filed a motion for summary judgment (Docket Entry No. 19), to which petitioner filed a response (Docket Entry No. 20). Having considered the motion for summary judgment, the response, the record, public court records, and the applicable law, the Court GRANTS the motion to dismiss and DISMISSES this lawsuit for the reasons shown below. I. BACKGROUND AND CLAIMS Petitioner was convicted of murder in Harris County, Texas, and sentenced to life incarceration in 1990. In the instant proceeding, petitioner complains that the Texas Board of Pardons and Paroles (the “Board”) denied him parole in March 2021. (Docket Entry No. 20, p. 7.) He claims that the Board’s decision constitutes double jeopardy and violated his

Sixth Amendment rights because he was not informed of the “accusations” behind the parole denial. He asks that the Court grant habeas relief and order his release to parole. Respondent argues that habeas relief should be summarily denied because petitioner did not exhaust his state court remedies prior to filing this lawsuit. Il ANALYSIS A petitioner must fully exhaust state court remedies before seeking federal habeas relief, 28 U.S.C. § 2254(b). Section 2254(b)(1)(A) provides that an application for writ of habeas corpus “shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” To exhaust in accordance with section 2254, a petitioner must fairly and properly present the factual and legal basis of any claim to the highest available state court for review prior to raising it in federal court. Deters v. Collins, 985 F.2d 789, 795 (Sth Cir. 1993). In Texas, the exhaustion requirement is satisfied when the substance of the federal claim is fairly and properly presented to the Texas Court of Criminal Appeals on direct appeal or in a state post-conviction proceeding. Fisher v. State, 169 F.3d 295, 302 (Sth Cir. 1999). Exceptions exist only where there is an absence of an available state corrective process or circumstances exist that render the available process ineffective. 28 U.S.C. § 2254(b)(1)(B). The exhaustion requirement extends to habeas claims concerning the denial of parole. See Serio v. Members of Louisiana State Bd. of Pardons, 821 F.2d 1112, 1119 (Sth Cir. 1987) (holding that claim challenging denial of parole requires exhaustion of state remedies).

Respondent asserts that petitioner did not exhaust his state court remedies through the Texas Court of Criminal Appeals prior to filing this action. In support, respondent directs the Court to public online records for the Texas Court of Criminal Appeals. The Court has reviewed those records and takes judicial notice that petitioner has not filed any proceedings with that court since 2010.' Petitioner presents no probative summary judgment evidence controverting these public records, and he fails to establish that he exhausted his state court remedies as to his 2021 parole denial. Nor does he demonstrate the absence of an available state corrective process or circumstances that render the available process ineffective. Petitioner did not exhaust his state court remedies prior to filing this lawsuit, and respondent is entitled to summary judgment dismissing this case. Ii. CONCLUSION Respondent’s motion for summary judgment (Docket Entry No. 19) is GRANTED and this lawsuit is DISMISSED WITHOUT PREJUDICE. Any and all pending motions are DISMISSED AS MOOT. A certificate of appealability is DENIED. Signed at Houston, Texas, on JAN 3 1 2023

ALFRED H. BENNETT : □ UNITED STATES DISTRIGT JUDGE

'https://search.txcourts.gow/CaseSearch.aspx?coa=coscca&s=c, “Harper, Timothy Jeremy” (last visited January 30, 2023) (showing no habeas applications filed since 2010).