Opinion
NO. 3-04-CV-0603-H
March 29, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Efrain Hernandez, 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 was convicted of murder and sentenced to 30 years confinement. His conviction and sentence were affirmed on direct appeal. State v. Hernandez, No. 05-02-00238-CR (Tex.App.-Dallas, May 27, 2003, no pet.). Petitioner did not file a petition for discretionary review or an application for state post-conviction relief. Instead, he challenges his conviction in federal court on the grounds that he received ineffective assistance of counsel and the prosecutor withheld exculpatory evidence. Petitioner also seeks an order staying or abating this proceeding until he exhausts his state remedies.
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). A Texas prisoner must present his claim to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). A federal habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990), cert. denied, 111 S.Ct. 2862 (1991); Bautista, 793 F.2d at 110.
Petitioner acknowledges that he has not exhausted his state remedies. However, he fears that this action may be barred by limitations if he waits for a ruling on his state writ. Without deciding whether this case is or may be time-barred, the court declines to stay or abate the proceeding while petitioner attempts to present his claims to the Texas Court of Criminal Appeals. Petitioner may seek federal habeas relief after he satisfies the exhaustion requirement.
Petitioner correctly notes that a one-year statute of limitations applies to an application for writ of habeas corpus under 28 U.S.C. § 2254. However, the limitations period is tolled while "a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending. . ." 28 U.S.C. § 2244(d)(2).