Opinion
No. 3:02-CV-706-H.
April 11, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
PROCEDURAL BACKGROUND
This is a habeas corpus proceeding brought under 28 U.S.C. § 2254. Petitioner is in the custody of the Texas Department of Criminal Justice, Institutional Division.
On June 14, 2000, Petitioner was convicted of robbery and aggravated robbery. (Pet. at p. 2). Petitioner was sentenced to twenty years imprisonment. ( Id.). The Texas Fifth District Court of Appeals affirmed Petitioner's conviction on June 29, 2001. ( Id. at p. 3). Petitioner did not file a petition for discretionary review. ( Id.). Petitioner also has not filed any state applications for habeas corpus relief. ( Id.).
On April 5, 2002, Petitioner filed this federal habeas corpus petition. Petitioner alleges: (1) there was insufficient evidence to support his conviction; (2) he received ineffective assistance of counsel; and (3) the prosecution committed a Batson error during jury selection. ( Id. at pp. 7-8).
The Court sua sponte finds that this case should be dismissed without prejudice for failure to exhaust state remedies.
EXHAUSTION OF STATE COURT REMEDIES
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). 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); Bautista, 793 F.2d at 110.
The petition shows that Petitioner did not file a petition for discretionary review, and he has not filed any state applications for habeas review. Petitioner has therefore not presented his claims to the Texas Court of Criminal Appeals. Although the terms of § 2254(b)(2) provide that an application for a writ of habeas corpus may be denied on the merits notwithstanding the applicant's failure to exhaust his state court remedies, complete exhaustion assists the federal courts in their review because federal claims that have been fully exhausted in state courts will necessarily be accompanied by a more complete factual record. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
RECOMMENDATION
For the foregoing reasons, the Court recommends that the District Court dismiss the habeas corpus petition without prejudice for failure to exhaust state court remedies.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on Petitioner. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).