Opinion
NO. 3-03-CV-1230-K.
June 17, 2003.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Leroy White, Jr., 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 of unauthorized use of a motor vehicle and sentenced to 20 years confinement. His conviction is currently on direct appeal to the Texas Court of Appeals. Notwithstanding the pendency of this appeal, petitioner seeks federal habeas relief on the grounds that his conviction is void and he received ineffective assistance of counsel.
II.
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); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). 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 asks the court to waive the exhaustion requirement because of the "excessive and unexcusable delay of the appellate process." (Hab. Pet. at 7A). According to the state court docket sheet, petitioner timely perfected his appeal on October 5, 2001. However, the reporter did not file a transcript in the court of appeals until February 24, 2003. This has delayed the disposition of the appeal by some 16 months. Although an inordinate and unjustified delay in the state appellate process may excuse the exhaustion requirement, the delay must be solely attributable to inadequate state procedures and impinge on the petitioner's due process rights. Deters v. Collins, 985 F.2d 789, 795-96 (5th Cir. 1993). See also Carpenter v. Young, 50 F.3d 869, 870-71 (10th Cir. 1995) (two-year delay creates presumption that state appellate process is ineffective); Coe v. Thurman, 922 F.2d 528. 530-01 (9th Cir. 1990) (four-year delay); Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir. 1982) (two-year delay); Matthews v. Johnson, No. 3-97-CV-1475-T (N.D. Tex. Sept. 17, 1996), rec. adopted by ORDER (N.D.Tex. Oct. 23, 1996) (four-year delay). Petitioner has failed to show that the delay in this case, while certainly regrettable, results from an inadequate state procedure. Moreover, it appears that the appeal has now been fully briefed and is ripe for determination. Under these circumstances, petitioner should be required to exhaust his state remedies before seeking federal habeas relief.
The transcript was filed 17 days after the appellate court issued a show cause order to the trial judge. Petitioner does not explain why he or his attorney neglected to seek such an order sooner.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state remedies.