Opinion
No. 3-04-CV-2465-L.
January 6, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Claude Allen Hamilton, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed without prejudice for failure to exhaust state remedies.
I.
Petitioner is awaiting trial on state drug charges. Although he was arrested more than 12 months ago, the state has not yet brought him to trial. Petitioner believes he was arrested on a "fabricated" traffic warrant and complains that the prosecutor and his court-appointed lawyer are ignoring the circumstances surrounding his arrest. On December 6, 2004, the court sent a Spears questionnaire petitioner in order to determine whether this claim was raised in state court. Petitioner answered the questionnaire on January 3, 2005. The court now determines that this case should be summarily dismissed for failure to exhaust state remedies.
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
II.
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 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), cert. denied, 103 S.Ct. 1508 (1983). In Texas, a pretrial detainee must present his claims to the Texas Court of Criminal Appeals in an application for writ of habeas corpus before seeking relief in federal court. See Davis v. Anderson, 2003 WL 22389281 at *1-2 (N.D. Tex. Sept. 10, 2003) (citing cases).Although petitioner states he filed a writ of habeas corpus with the Dallas County district clerk, neither the trial court nor the Texas Court of Criminal Appeals has a record of such a filing. Nor has petitioner shown "exceptional circumstances of peculiar urgency" warranting federal interference with the state corrective process. Id. at *2. Until petitioner presents his claim to the Texas Court of Criminal Appeals, he may not seek habeas relief in federal court.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state remedies.