Opinion
No. 3:05-CV-644-H.
April 12, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
PROCEDURAL BACKGROUND
This is a habeas corpus proceeding brought under 28 U.S.C. § 2254. Petitioner is in the custody of the Texas Department of Criminal Justice — Institutional Division.
On November 13, 2000, Petitioner was convicted of aggravated assault with a deadly weapon in cause number F00-01976-H. (Pet. p. 2). On May 14, 2002, the Fifth District Court of Appeals dismissed his appeal. (Pet. p. 3). Petitioner did not file a petition for discretionary review. ( Id.).
On March 12, 2003, Petitioner filed a state petition for writ of habeas corpus. ( Id.). That petition is currently pending. (Pet. pp. 4, 9).
EXHAUSTION OF STATE COURT REMEDIES
A petitioner must fully exhaust state remedies before seeking federal habeas relief. See 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). 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 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); Bautista, 793 F.2d at 110.In this case, Petitioner states he did not file a petition for discretionary review. His state habeas petition is currently pending. He has therefore not presented his claims to the Texas Court of Criminal Appeals.
Although the terms of § 2254(b)(2) provide that an application for a writ of habeas corpus may be denied on the merits notwithstanding the applicant's failure to exhaust his state court remedies, complete exhaustion assists the federal courts in their review because federal claims that have been fully exhausted in state courts will necessarily be accompanied by a more complete factual record. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
RECOMMENDATION
For the foregoing reasons, the Court recommends that the District Court dismiss the habeas corpus petition without prejudice for failure to exhaust state court remedies.