Opinion
NO. 3-03-CV-0216-K.
July 18, 2003.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Ideria Wayne Smith, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed without prejudice for failure to exhaust state remedies.
I.
Petitioner was convicted on two counts of aggravated robbery and sentenced to 50 years confinement in each case. His convictions and sentences were affirmed on direct appeal. Smith v. State, Nos. 05-92-00327-CR No. 05-92-00328-CR (Tex.App. — Dallas 1993, no pet.). Petitioner also challenged one of his robbery convictions in an application for state post-conviction relief. The application was denied without written order. Exparte Smith, No. 34,324-01 (Tex.Crim.App. Feb. 24, 1997). Almost four years later, petitioner filed another state writ alleging that he was denied the opportunity to file a pro se petition for discretionary review ("PDR"). While that writ was pending, petitioner filed the instant case in federal court. The Texas Court of Criminal Appeals subsequently granted habeas relief and allowed petitioner to file an out-of-time PDR. Exparte Smith, Nos. 74,601 74,602 (Tex.Crim.App. Mar. 26, 2003). Petitioner filed separate PDRs challenging his aggravated robbery convictions on July 3, 2003. Both petitions remain pending.
II.
In his sole ground for relief, petitioner contends that he was denied a fair trial because of improper comments made by the prosecutor during closing argument. Petitioner makes the same claim on direct appeal in state court. Because his PDRs are still pending in the Texas Court of Criminal Appeals, the court sua sponte determines that this case should be dismissed for failure to exhaust state remedies.
III.
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). This entails submitting the factual and legal basis of any claim to the highest available state court for review. Carter v. Estelle, 677 F.2d 427,443 (5th Cir. 1982), cert. denied, 103 S.Ct. 1508 (1983). A Texas prisoner must present his claims to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986). A federal habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333,334 (5th Cir. 1990), cert. denied, 111 S.Ct. 2862 (1991); Bautista, 793 F.2d at 110.
Petitioner challenges his aggravated robbery convictions on the same grounds in both state and federal court. His direct appeal is still pending in the Texas Court of Criminal Appeals. Consequently, petitioner has not exhausted his state remedies.
Respondent suggests that, despite the pendency of his direct appeal, petitioner's federal habeas case is barred by the AEDPA statute of limitations. In granting state post-conviction relief, the Texas Court of Criminal Appeals held that "[t]he proper remedy in a case such as this is to return Applicant to the point at which he can file a petition for discretionary review." Ex parte Smith, Nos. 74,601 74,602, op. at 2. This means that "[f]or purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the Court of Appeals decision had been rendered on the day the mandate of this Court issues." Id.; see also Exparte Torres, 943 S.W.2d 469, 473 (Tex.Crim.App. 1997) (holding that out-of-time appeal "restores the pendency of the direct appeal"). Under the AEDPA, the one-year statute of limitations begins to run when the state court judgment becomes final after direct appeal or the time for seeking such review has expired. See 28 U.S.C. § 2244(d)(1)(A). Assuming his PDRs were timely filed, petitioner's convictions will not become final for AEDPA limitations purposes until 90 days after the Texas Court of Criminal Appeals denies discretionary review or, if petitioner seeks a writ of certiorari, the date certiorari is denied by the U.S. Supreme Court. See Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir.), cert. denied, 123 S.Ct. 663 (2002).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state remedies.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of petitioner's application for writ of habeas corpus in the above-styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).