Jackson v. State of Texas

Full title: HERBERT LEE JACKSON, Petitioner v. STATE OF TEXAS, Respondent

Court: United States District Court, N.D. Texas

Date published: Apr 7, 2004

No. 3:04-CV-223-R (N.D. Tex. Apr. 7, 2004)

Opinion

No. 3:04-CV-223-R

April 7, 2004

FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, 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.

On October 28, 2003, Petitioner was convicted of theft under twenty dollars in Precinct One, Justice of the Peace Court, Dallas County, Texas. Petitioner appealed his conviction, but he states the appellate court has not rendered a decision. (Pet. p. 3). Petitioner also states that he used the wrong forms in attempting to file a petition for discretionary review. ( Id.). Petitioner did not file a state petition for writ of habeas corpus. ( Id.).

On February 3, 2004, Petitioner filed this petition claiming his conviction violated his constitutional rights.

EXHAUSTION OF STATE COURT REMEDIES

A petitioner must fully exhaust state remedies before seeking federal habeas relief. See 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.

In this case, Petitioner states he did not file any state applications for writ of habeas corpus. He also states he filed his petition for discretionary review on the wrong forms. He 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. Am, 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).