Opinion
No. 3:05-CV-0327-K.
March 1, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Price Daniel Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Snyder, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process to Respondent in this case.
Statement of the Case: Following his plea of not guilty, a jury convicted Petitioner of aggravated sexual assault in the Criminal District Court No. 1, Dallas County, Texas, Cause No. F99-30828-KH. (Petition (Pet.) at 2). Punishment was assessed at twenty years imprisonment. Id. The Eleventh Court of Appeals affirmed his conviction and sentence. Brinston v. State, No. 11-03-00053-CR (Tex.App. — Eastland, Mar. 4, 2004) (unpublished). Petitioner filed neither a petition for discretionary review nor a state habeas corpus application pursuant to art. 11.07, Texas Code of Criminal Procedure, challenging the conviction at issue in this case. (Pet. at 3).
In his federal petition, filed on February 15, 2005, he alleges the trial court violated his Fifth Amendment rights when it "remarked he would testify." (Pet. at 7).
Findings and Conclusions: It is well settled that a state prisoner must exhaust all available state court habeas corpus remedies before a federal court will consider the merits of his claims. 28 U.S.C. § 2254(b) and (c). The exhaustion requirement is designed to "protect the state court's role in the enforcement of federal law and prevent the disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518 (1982). In order to exhaust, a petitioner must "fairly present" all of his claims to the highest state court for review. Shute v. State of Texas, 117 F.3d 233, 237 (5th Cir. 1997); Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 430-31 (5th Cir. 1985). A Texas prisoner may satisfy that requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in a petition for discretionary review or in an application for a state writ of habeas corpus pursuant to Tex. Code Crim. Proc. art. 11.07.Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998);Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986);Richardson, 762 F.2d at 430-32; see also Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990).
A review of the petition reflects that Petitioner has not satisfied the exhaustion requirement. It is clear that he filed neither a petition for discretionary review nor an art. 11.07 application. (Pet. at 3). The Texas Court of Criminal Appeals has, thus, not had an opportunity to consider the claims which Petitioner raises in these actions. Accordingly, the petition for a writ of habeas corpus should be dismissed without prejudice to Petitioner's right to refile after exhausting state habeas corpus remedies. See Rose v. Lundy, supra. RECOMMENDATION:
The court cautions Petitioner that the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court, see 28 U.S.C. § 2244(d), and that this provision will be applicable to any subsequent petition that Petitioner may file in this court.
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be dismissed without prejudice for failure to exhaust state court remedies. A copy of this recommendation will be mailed to Petitioner.