Opinion
3:03-CV-1761-G
January 8, 2004
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 Allred Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Iowa Park, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process to Respondent in this case.
Statement of the Case: A jury convicted Petitioner of manslaughter in the 40th District Court of Ellis County, Texas. Punishment was assessed at twenty years imprisonment and a $10,000 fine. Petitioner appealed. On May 22, 2002, the Tenth District Court of Appeals at Waco affirmed Petitioner's conviction and sentence.Chavez v. State, No. 10-00-241-CR (Tex.App.-Waco 2002) (unpublished). A petition for discretionary review was refused by the Court of Criminal Appeals on January 22, 2003.
Subsequently, on February 11, 2003, Petitioner filed a state habeas corpus application pursuant to art. 11.07, Texas Code of Criminal Procedure. Ex parte Chavez, 55, 313-01, at 52. The Court of Criminal Appeals dismissed the writ on March 26, 2003. Id. at cover.
The record reflects that the art. 11.07 application was filed on February 7, 2003, after the refusal of the petition for discretionary review on January 22, 2003, but before the issuance of a mandate by the Tenth Court of Appeals on March 10, 2003. (See Petitioner's Resp. to Mot. to Dism. at 3 and Attachments thereto). Under Texas law, a judgment is not final until a mandate from the intermediate court of appeals has issued. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000).
In his federal petition, filed on August 7, 2003, Petitioner challenges the ineffective assistance of counsel and the sufficiency of the evidence.
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. Although Petitioner raised the claims in his petition for discretionary review, he failed to raise them in his intermediate-appellate-court brief. See Myers v. Collins, 919 F.2d 1074, 1077 (5th Cir. 1990) (exhaustion requirement is not satisfied if prisoner raises ineffective assistance of counsel claims in Texas Court of Criminal Appeals without first obtaining review by intermediate appellate court). Additionally his art. 11.07 application was dismissed without considering his claims on the merits because a mandate had not been issued at the time the application was filed. The Texas Court of Criminal Appeals has, thus, not had an opportunity to consider the merits of the claims which Petitioner raises in this action. Accordingly, the petition for a writ of habeas corpus should be dismissed without prejudice. RECOMMENDATION:
Insofar as Petitioner questions the propriety of the dismissal of his art. 11.07 application because the mandate was not issued until after the filing of the application, his claim is not cognizable in this habeas corpus action.
For the foregoing reasons, it is recommended that Respondent's motion to dismiss be granted and that the petition for a writ of habeas corpus be dismissed without prejudice for failure to exhaust state court remedies. See 28 U.S.C. § 2254(b) and (c).
The court cautions Petitioner that the 1996 amendment to 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.
A copy of this recommendation will be mailed to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.