Opinion
No. 3:05-CV-0314-N.
March 11, 2005
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 in the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Statement of the Case : On August 18, 1986, petitioner pled guilty to attempted murder and was sentenced to eighteen years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) He was subsequently released on parole and the State thereafter revoked that parole on July 30, 2004. ( See Pet. at 5, 7.) He challenges that revocation proceeding. ( Id. at 2.) On December 13, 2004, he filed a state writ, WR-5,013-15. (Pet. ¶ 11.) On January 12, 2005, the Court of Criminal Appeals dismissed the petition for petitioner's failure to comply with TEX. GOV'T CODE § 501.0081. See Texas Judiciary Online, http://www.cca.courts.state.tx.us/opinions/EventInfo.asp?EventID=2183057 (accessed March 3, 2005). On February 10, 2005, petitioner placed the instant petition in the prison mail system and thus filed it. (Pet. at 9.) He complains that his due process rights were violated during his parole revocation and by imposing a sex offender condition as a condition of parole. ( Id. at 7.) He also complains that he has been denied credit his sentence for the time he spent on parole. ( Id.)
II. EXHAUSTION
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). To exhaust in accordance with § 2254, 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 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, 762 F.2d at 432. To exhaust in accordance with § 2254, a petitioner must fairly present all claims to the state courts prior to raising them in federal court. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993).
Furthermore, as of January 1, 2000, Texas inmates must generally pursue sentence credit issues through a dispute-resolution process within the prison system before seeking relief through the state habeas process. See TEX. GOV'T CODE § 501.0081 (Vernon 2004). After completion of the dispute-resolution process or upon being exempted from such completion, the inmate must also pursue relief through the state habeas process to fully exhaust his state remedies. Id.; Ex parte Shepherd, 65 S.W.3d 673, 674-75 (Tex.Crim.App. 2002) (Cochran, J., concurring).
In this case, petitioner presented a state writ to the Texas Court of Criminal Appeals. That court, however, dismissed the writ for failure of petitioner to comply with TEX. GOV'T CODE § 501.0081. To exhaust state remedies, petitioners must present their claims in a procedurally correct manner. See Castille v. Peoples, 489 U.S. 346, 351 (1989). When a petitioner has raised a claim in a procedural context "in which its merits will not be considered," he has not "fairly presented" the claim to the state courts and, accordingly, has not satisfied the exhaustion doctrine. Id.; Satterwhite v. Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989).
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 failed to pursue the administrative remedies accorded by TEX. GOV'T CODE § 501.0081, the Texas Court of Criminal Appeals has had no meaningful opportunity to review the claims petitioner presented in his state writ filed December 13, 2004. Accordingly, 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 (holding that 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.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant habeas corpus petition be DISMISSED without prejudice for failure to exhaust state court remedies.