Opinion
NO. 3-05-CV-0039-K.
March 17, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Steven Moxley, 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.
On February 9, 2005, petitioner filed an application for writ of habeas corpus challenging his conviction and one-year sentence for theft. In four grounds for relief, petitioner contends that: (1) he received ineffective assistance of counsel; (2) he was denied due process of law; (3) he was falsely charged; and (4) he was mistreated while confined in the Dallas County Judicial Treatment Center. Because it is not clear whether these claims were ever presented to the Texas Court of Criminal Appeals on direct appeal or collateral review, the court sent a Spears questionnaire to petitioner in order to determine whether he has exhausted his state remedies. Petitioner answered the questionnaire on March 11, 2005. He also filed a motion to be excused from the exhaustion requirement. The court now determines that this case should be dismissed without prejudice.
Petitioner originally filed a complaint entitled "Motion to Correct and Modified an Illegal Sentence." Because the court was unable to determine whether petitioner intended to challenge his state theft conviction or the contents of a psychiatric evaluation performed by a therapist at the Dallas County Treatment Center, petitioner was ordered to clarify the relief sought by filing either a habeas petition or a civil rights complaint. See Order, 1/13/05. In response to that order, petitioner filed an application for writ of habeas corpus on February 9, 2005.
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
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 concedes that he has never presented his claims to the Texas Court of Criminal Appeals. ( Spears Quest. #1). Instead, he argues that the exhaustion requirement should not apply in this case because he received ineffective assistance of counsel and only pled guilty so he could receive drug and alcohol treatment. Neither argument establishes "an absence of available State corrective process" or "circumstances that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B). Unless and until petitioner presents his claims to the highest available state court for review, he cannot seek relief in federal court.
The federal habeas statute provides, in pertinent part:
An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1). A federal court may sua sponte raise this procedural defense and dismiss a habeas petition for failure to exhaust state remedies. See Magouirk v. Phillips, 144 F.3d 348, 356 (5th Cir. 1998).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state remedies.