McCoin v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
DON MCCOIN,
Petitioner,
v.
DIRECTOR, TDCJ-CID,
Respondent.
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CIVIL ACTION NO. 5:25-CV-153-RWS-JBB
ORDER
Petitioner Don McCoin, proceeding pro se, filed the above-captioned petition for the writ
of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his conviction. Docket No. 7.
The case was referred to the United States Magistrate Judge J. Boone Baxter in accordance with
28 U.S.C. § 636.
Petitioner challenges a June 2023 conviction from Red River County purportedly for
aggravated assault with a deadly weapon and family violence. Docket No. 7 at 2–3. He claims that
his attorney told him that he must plead guilty because the judge would not appreciate a not guilty
plea, and the evidence showing his innocence was all hearsay. Id. at 6. Petitioner also complains
that no investigation was conducted into the circumstances of his arrest. Id. at 7. According to
Petitioner, he was arrested and removed from his own property while a trespasser was left there to
rob him. Id. Petitioner further contends that he did not get notices of court appearances, so he had
to keep calling to avoid being cited for failing to appear. Id.
Petitioner represented that he had not appealed his conviction and that he had filed a state
habeas petition, which was denied by the district court. Id. at 3–4. The online records of Red River
County 	(available 	at 	https://research.txcourts.gov/CourtRecordsSearch/Home#!) 	show 	that
Petitioner has filed two state habeas petitions under Texas Code of Criminal Procedure
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Article 11.072, which were denied by the district court, but he did not appeal either denial to the
Texas Court of Criminal Appeals. The online records of the Court of Criminal Appeals confirm
that 	Petitioner 	has 	not 	appealed 	any 	adverse 	rulings 	against 	him. 	See 	https://search.tx-
courts.gov/CaseSearch.aspx?coa=coscca&s=c.
After reviewing the pleadings, the Magistrate Judge issued a report and recommendation,
recommending that the petition be dismissed for failure to exhaust state remedies. Docket No. 21
at 3. The Magistrate Judge explained that exhaustion of state remedies requires the petitioner to
“fairly present” his claims to the highest available state court in Texas, which is the Texas Court
of Criminal Appeals. Id. at 2 (citing Nickleson v. Stephens, 803 F.3d 748, 753 (5th Cir. 2015)).
Because Petitioner has not presented any claims to the Texas Court of Criminal Appeals, the
Magistrate Judge determined that he had not exhausted his state remedies. Id. at 2–3.
Petitioner has filed a response (Docket No. 22), which the Court construes as objections to
the Report and Recommendation. He argues that he filed two habeas petitions in state court, which
were denied, and that he was told that a third one would have to be filed in federal court. Docket
No. 22. He states “I can prove what I say with the court [minutes] of every time I went to court.
The last time I tried to get them[,] they found drugs in my car.” Id. The Red River County dockets
confirm that Petitioner filed two habeas petitions that were denied by the state district court and
not appealed to the Texas Court of Criminal Appeals.
As stated above, the state district court construed Petitioner’s habeas petitions as falling
under Article 11.072 of the Texas Code of Criminal Procedure. Section 8 of this article provides
that “[i]f the application is denied in whole or in part, the applicant may appeal under Article 44.02
and Rule 31, Texas Rules of Appellate Procedure.” Because Petitioner did not appeal his claims
to the Texas Court of Criminal Appeals, he has not presented his claims to the highest court in the
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state of Texas, and the Magistrate Judge correctly determined that he did not exhaust his state
remedies. Docket No. 21 at 2–3.
The Court has conducted a careful de novo review of those portions of the Magistrate
Judge’s proposed findings and recommendations to which Petitioner objected. See 28 U.S.C.
§ 636(b)(1) (explaining that a District Judge “shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is made”).
Upon such de novo review, the Court has determined that the Report and Recommendation of the
Magistrate Judge is correct and the Petitioner’s objections are without merit. Accordingly, it is
ORDERED that the Report and Recommendation of the Magistrate Judge (Docket No. 21)
is ADOPTED as the opinion of the District Court. It is further
ORDERED 	that 	the 	above-captioned 	petition 	for 	the 	writ 	of 	habeas 	corpus 	is
DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. It is further
ORDERED that a certificate of appealability is DENIED sua sponte, with such denial
applying solely to an appeal of the decision in this case. The denial of Petitioner’s certificate has
no effect upon Petitioner’s right to seek relief in state court through any proper means or to seek
relief in federal court after he has exhausted his remedies in state court.
.
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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
So ORDERED and SIGNED this 25th day of February, 2026.
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