Opinion
No. 3:04-CV-0550-G.
April 1, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is an inmate currently incarcerated Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Statement of the Case : On December 7, 2001, petitioner pled guilty to sexual assault in Cause No. F01-75383-LU, and was sentenced to seven years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) Although petitioner did not appeal his conviction, he did file a state petition for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure that was denied on August 13, 2003. ( See id. ¶ 8, ¶¶ 10-11.) In the instant petition he challenges his conviction on two grounds: (1) ineffective assistance of trial counsel and (2) perjury during resolution of his 11.07 petition. ( Id. at 7.) He concedes that the instant federal petition is the first time he has raised the perjury claim to any court. ( Id. at ¶ 22.)
II. FAILURE TO EXHAUST
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). To exhaust in accordance with § 2254 when challenging a conviction, a petitioner must fairly present the factual and legal basis of any claim to the highest available state court for review prior to raising it in federal court. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas, a prisoner must present claims that challenge his conviction 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, 762 F.2d at 432.
In this case, petitioner admits that he has not presented his perjury claim to the state court, although he has exhausted his state remedies with respect to his claim of ineffective assistance of counsel. The instant petition is thus a "mixed-petition" in that it contains both exhausted and unexhausted claims. A federal district court may raise the lack of exhaustion sua sponte. Shute v. State, 117 F.3d 233, 237 (5th Cir. 1997). It is well-settled that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). 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.
Because petitioner has not presented his perjury claim to the Texas Court of Criminal Appeals, that court has had no opportunity to review that claim. A ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (the exhaustion requirement is "designed to protect the state courts' role in the enforcement of federal law and prevent the disruption of state judicial proceedings"). Petitioner is, therefore, not entitled to habeas corpus relief for failure to exhaust his state remedies. As a mixed-petition, the entire petition must be dismissed for the failure to exhaust the perjury claim.
The Court notes that, although petitioner has filed a previous state application for writ of habeas corpus, a second state application which asserts the perjury claim does not appear subject to dismissal as an abuse of the writ "because the factual . . . basis for the claim was unavailable on the date [he] filed the previous application." See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a) (Vernon 1999).