Opinion
Civil Action No. 3:03-CV-443-L (Consolidated with 3:03-CV-487-L 3:03-CV-488-L)
January 28, 2004
ORDER
This is a habeas case brought under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this action was referred to the United States magistrate judge for proposed findings and recommendation. On January 12, 2004, the Findings, Conclusions and Recommendation of the United States Magistrate Judge were filed, to which Petitioner filed objections on January 26, 2004.
The magistrate judge recommended that Petitioner's request for habeas corpus relief be denied because his petition contains claims for which he has not exhausted his state remedies. Specifically, the magistrate judge found that Petitioner's federal habeas petition raised new claims that Petitioner did not present to the state courts in his state habeas petition. In his objections, Petitioner concedes that he raises new claims but explains that not until he was transferred to the Allred Unit, which has a more complete law library than his other Units, was he able to appreciate the full extent of his rights. Upon further review, Petitioner continues, he decided to add his due process and ex post facto claims to his federal petition because it "was to late to redo" his state petition. As the magistrate judge correctly stated "[a] federal habeas petition that contains unexhausted claims must be dismissed in its entirety." Findings at 3 (citing Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990); Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986)). Therefore, the court overrules Petitioner's objections and agrees with the magistrate judge.
Having reviewed the pleadings, objections, file and record in this case, the findings and conclusions of the magistrate judge, the court determines that the findings and conclusions are correct. The magistrate judge's findings and conclusions are accepted as those of the court. Accordingly, Petitioner's petition for habeas corpus is hereby denied, and this action is dismissed without prejudice.
On August 13, 2003, Petitioner filed a motion to compel a ruling on his petition for habeas corpus. As this order rules on his petition, the court denies as moot Petitioner's Motion to Compel. On October 23, 2003, Petitioner filed a "motion for supplement of facts" to which he attached records from the Texas Department of Criminal Justice relating to his criminal convictions. Having dismissed his petition for failure to exhaust state remedies, the court need not consider the information he seeks to add to his petition. Accordingly, Petitioner's Motion for Supplement of Facts is denied as moot.