Opinion
3:04-CV-0209-R.
April 26, 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 Clements Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-CID) in Amarillo, Texas. Respondent is the Director of TDCJ-CID. The court issued process to Respondent in this case.
Statement of the Case: On August 27, 1997, Petitioner pled guilty to three felony offenses of aggravated robbery with a deadly weapon in the Fifth Criminal District Court of Dallas County, Texas, cause numbers F91-44829-TL, F91-9144763-TL, and F91-44764-TL. Punishment was assessed at twenty years imprisonment. On January 29, 1998, Petitioner pled guilty before the same trial court to two felony offenses of sexual assault in cause numbers F98-19367-L and F97-19561-VL. Punishment was assessed at twenty years in the latter two cases as well.
In his federal petition, filed on January 30, 2004, Petitioner alleges the State of Texas is in breach of the plea agreements in cause numbers F98-19367-L and F97-19561-VL, which allegedly provided that his twenty-year state sentence would run concurrent with his previously imposed federal sentence in United States v. Collins, No. 3:02cr141-R (N.D. Tex., Dallas Div.).
In response to this court's order to show cause, Respondent filed an answer seeking dismissal of the petition for failure to exhaust state court remedies. He states that on March 4, 2004, Petitioner filed five state applications for writ of habeas corpus, pursuant to art. 11.07, Texas Code of Criminal Procedure. (Respondent's Mot. to Dism. at 5 and Exh. B thereto). According to Respondent the applications are pending before the trial court and have yet to be forwarded to or adjudicated by the Texas Court of Criminal Appeals. (Respondent's Mot. to Dism. at 5 and Exh. C thereto).
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 (5th Cir. 1985).
A review of the petition reflects that Petitioner has not satisfied the exhaustion requirement. His art. 11.07 applications are presently pending in the Texas state court system. 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:
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.
The court cautions Petitioner that the 1996 amendments to the habeas corpus statute impose a one-year statute of limitations for filing habeas corpus petitions in federal court.See 28 U.S.C. § 2244(d)(1) and (2) (setting out one-year statute of limitations and providing for statutory tolling during the pendency of a properly filed state post-conviction application).
A copy of this recommendation will be mailed to Petitioner and counsel for Respondent.