Opinion
3:03-CV-1651-M
November 5, 2003
ORDER
Before the Court are the Findings and Recommendation of the United States Magistrate Judge, in which the Magistrate Judge recommends that Petitioner's application for writ of habeas corpus be dismissed without prejudice for failure to exhaust state remedies.
The Court wishes to make special note of the recommendation that the Court dismiss ground 1 of Petitioner's application for habeas relief, which relates to whether the judgment rendered by the state court, before the case was remanded by United States District Judge Jorge Solis, is void. Although the Court finds it illogical to require Petitioner to adjudicate through potentially lengthy state court appeals whether the state court could proceed to judgment while Judge Solis had jurisdiction over the case, under 28 U.S.C. § 2254(b), a federal court lacks the authority to grant habeas relief on an unexhausted claim unless "there is an absence of available state corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b). Here, state corrective process is available; in fact, petitioner's conviction is currently pending on direct appeal. Further, there is no indication that state process would be futile, that the state has unreasonably delayed in acting on petitioner's efforts to invoke state remedies, or that the state's procedures are so cumbersome, complex, and confusing that they frustrate good faith attempts to comply with them. See Dilworth v. Johnson, 215 F.3d 497, 501 n. 3 (5th Cir. 2000); Carter v. Estelle, 677 F.2d 427, 447 (5th Cir. 1982); Breazeale v. Bradley, 583 F.2d 5, 6 (5th Cir. 1978). Therefore, at this point, the Court cannot find that state process would be ineffective to protect the rights of Petitioner.
Thus, despite what appears to be a violation of 28 U.S.C. § 1446(c)(3), this Court must dismiss Petitioner's habeas corpus petition without prejudice, for failure to exhaust state remedies. As the Fifth Circuit has observed: "[T]he concern for comity weighs more heavily when it appears that a state prisoner's claim has arguable merit than when it is easily dismissed as frivolous by a federal court." Mercadel v. Cain, 179 F.3d 271, 277 (5th Cir. 1999); see also Duckworth v. Serrano, 454 U.S. 1, 19-20 (1981) (rejecting the creation of an exhaustion exception for "clear violations" of a defendant's rights). Rather than holding Petitioner's application in abeyance pending exhaustion of the state remedies, the Court must dismiss Petitioner's habeas petition without prejudice. Graham v. Johnson, 168 F.3d 762, 778 (5th Cir. 1999) ("Unless the court decides to consider an unexhausted application, however, Lundy dictates that it be dismissed.") (citing Rose v. Lundy, 455 U.S. 509 (1982)).
Therefore, after conducting a review of the pleadings, files and records in this case, and the Findings and Recommendation of the United States Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1), the Court is of the opinion that the Findings and Recommendation of the Magistrate Judge are correct, and they are hereby accepted as the Findings of the Court.