Opinion
No. 3:02-CV-0743-D
April 19, 2002
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, ccnclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) Respondent is Janie Cockrell, Director of TDCJ-ID.
Statement of the Case: On July 8, 1999, a jury convicted petitioner of two counts of aggravated robbery. (Pet. Writ of Habeas Corpus (Pet.) ¶¶ 2-5.) On October 6, 2000, the Fifth Court of Appeals at Dallas, Texas, affirmed the conviction. Brown v. State, Nos. 05-99-01118-CR, 05-99-01119-CR, 2000 WL 1477219, at *4 (Tex.App.-Dallas Oct. 6, 2000, pet. ref'd). Petitioner has filed no state petition for writ of habeas corpus. (Pet. ¶ 11.) Petitioner, furthermore, concedes that he raises certain grounds for relief for the first time in the instant federal petition. ( Id. ¶ 22.) Findings: 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. Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). A Texas prisoner must present his claim 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, 762 F.2d at 432 . To exhaust in accordance with § 2254, a petitioner must fairly present all claims to the state courts prior to raising them in federal court. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993).
A federal district court may notice sua sponte the lack of exhaustion. Shute v. State, 117 F.3d 233, 237 (5th Cir. 1997). It is well-settled, furthermore, that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). 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); Bautista, 793 F.2d at 110 .
In this case, petitioner has not presented all of his claims to the Texas Court of Criminal Appeals. That court has thus had no opportunity to review his claims. Accordingly, a ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (the exhaustion requirement is "designed to protect the state courts' role in the enforcement of federal law and prevent the disruption of state judicial proceedings"). Petitioner is, therefore, not entitled to habeas corpus relief for failure to exhaust his state remedies.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant habeas corpus petition be DISMISSED without prejudice for failure to exhaust state court remedies.