Opinion
3:04-CV-0737-G.
April 22, 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. Statement of the Case: On May 17, 2001, petitioner was convicted of aggravated robbery in Cause No. F00-39955. (Pet. Writ of Habeas Corpus (Pet.) at 2.) On November 15, 2002, the Court of Appeals for the Fifth District of Texas at Dallas affirmed his conviction. See Cunningham v. State, No. 05-01-01059-CR, http://www.court-stuff.com/FILES/05/01/05011059. HTM (docket sheet information generated Feb. 26, 2004, hereinafter referred to as State Docket sheet) (Official internet site of the Court of Appeals for the Fifth District of Texas at Dallas). Petitioner filed no petition for discretionary review.Id. On February 11, 2004, the Texas Court of Criminal Appeals dismissed his state writ because his direct appeal was still pending when he filed the state writ. See Court of Criminal Appeals of Texas Hand Down Opinions for Feb. 11, 2004, http://www.cca.courts.state.tx.us/opinions/02112004%20handdown.htm (accessed Apr. 20, 2004) (Official internet site of the Texas Court of Criminal Appeals).
On April 15, 2004, the magistrate judge issued process to Respondent in this case. That order has been stricken by an order of even date.
The record reflects the art. 11.07 application was filed on January 22, 2003, after the affirmance of his conviction on December 15, 2002, but before the issuance of a mandate by the Fifth Court of Appeals on February 11, 2003. See Cunningham v. State, No. 05-01-01059-CR (State Docket Sheet). 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); see also Larry v. Dretke, 361 F.3d 890, 2004 WL 383165 (5th Cir. 2004) (discussing implications of filing state application before judgment of conviction becomes final).
On April 8, 2004, Petitioner filed the instant federal petition for writ of habeas corpus. (Pet. at 1.). 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).
Subsequently Petitioner submitted a duplicate habeas corpus action, which was assigned to Magistrate Judge Ramirez. See Cunningham v. Dretke, 3:04cv772-N. On April 20, 2004, Magistrate Judge Ramirez recommended that the duplicate action be administratively closed, and that the petition be filed in the present action as a supplemental petition.
A review of the petition reflects that Petitioner has not satisfied the exhaustion requirement. The 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:
For the foregoing reasons, it is recommended that this 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). Petitioner should act expediently and diligently in returning to state court to exhaust his state remedies. See Larry v. Dretke, 361 F.3d 890, 2004 WL 383165, *2-5 (5th Cir. 2004) (holding that state habeas application filed before judgment became final was not "properly filed" for purposes of tolling limitation period for filing federal habeas petition).
A copy of this recommendation will be mailed to Petitioner.