Opinion
No. 2:04-CV-0118.
March 17, 2005
REPORT AND RECOMMENDATION TO GRANT PETITIONER'S MOTION TO DISMISS and TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On May 3, 2004, petitioner filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his March 13, 2003 convictions for the felony offenses of aggravated sexual assault, aggravated assault against a public servant, and aggravated sexual assault of child out of the 320th Judicial District Court in Potter County, Texas, and the resultant 40-year sentence. On September 13, 2004, respondent filed an answer to petitioner's habeas application. In his answer, respondent initially asserts petitioner failed to properly exhaust his first ground, i.e., that petitioner's guilty plea was involuntary because he was threatened by the district attorney involved in his case. Respondent contends, in his answer, that petitioner is now precluded from raising this specific factual ground in a future state habeas application because he will be cited for abuse of the writ. Respondent concludes petitioner's first claim is thus unexhausted and procedurally defaulted and, therefore, this Court cannot hear, much less grant relief, with regard to petitioner's first ground. Respondent also addresses the merits of petitioner's claims, arguing that certain claims were waived by petitioner's guilty plea, that his plea was voluntary, and that petitioner was provided effective assistance of counsel.
Respondent contends petitioner claimed, in his state habeas petition, that his guilty plea was involuntary because he was mentally unstable and did not understand the consequences of his plea — a ground distinct and different than his current claim that his plea was involuntary due to threats by the district attorney.
On February 22, 2005, petitioner filed a "Motion to Dismiss without Prejudice" wherein he requests this Court dismiss the instant habeas application without prejudice in order that he may return to state court and present his unexhausted claim. Petitioner acknowledges the underlying legal theory he presented at state court is different than the legal theory he presents in this federal proceeding. Petitioner contends that as this claim is unexhausted, this Court lacks authority to adjudicate this claim. Petitioner "requests that this Habeas Proceeding be dismissed without prejudice because unexhausted claim does not raise colorable federal claim and interests of justice does not require review." In closing, petitioner, pursuant to Rose v. Lundy, "requests that his petition be dismissed without prejudice and that petitioner be given opportunity to attempt to exhaust his unexhausted claims or to file a new habeas petition raising only his exhausted claims."
RECOMMENDATION
It is the recommendation of the undersigned United States Magistrate Judge to the United States District Judge that the Motion to Dismiss filed by petitioner EDWARD SANCHEZ HINOJOS be GRANTED, and that the federal petition for a writ of habeas corpus be DISMISSED without prejudice. Petitioner is warned that a dismissal without prejudice does not necessarily prevent any procedural bar or time bar from being applied to any subsequent federal habeas application filed by petitioner. Therefore, petitioner is placed on notice that a dismissal "without prejudice" may very well have the practical consequences of a dismissal with prejudice.
INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner and to respondent's attorney of record by the most efficient means available.
IT IS SO RECOMMENDED.