Opinion
NO. 3-04-CV-1151-L.
July 15, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Brian Keith Simmons, 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.
Petitioner was convicted of indecency with a child and sentenced to 20 years confinement. His conviction and sentence were affirmed on direct appeal. Simmons v. State, No. 10-01-00364-CR (Tex.App.-Waco, Mar. 26, 2003). Petitioner did not file a petition for discretionary review. Instead, he filed an application for state post-conviction relief. That application is still pending. Ex parte Simmons, No. 58,761-01. Petitioner also filed an application for federal habeas relief alleging that: (1) the prosecutor tainted the jury selection process; (2) the state failed to disclose exculpatory evidence; (3) the evidence was insufficient to support his conviction; (4) he received ineffective assistance of counsel; and (5) he was denied the right to a fair trial. On June 22, 2004, the court sent written interrogatories to petitioner in order to determine whether these claims were ever presented to the Texas Court of Criminal Appeals. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Petitioner filed his interrogatory answers with the district clerk on July 13, 2004. The court now determines that this case should be dismissed without prejudice for failure to exhaust state remedies.
Petitioner filed his state writ with the trial court on April 8, 2004. The writ was recently forwarded to the Texas Court of Criminal Appeals where it remains pending.
Petitioner requests an extension of time to answer the interrogatory inquiring about the status of his case in the Texas Court of Criminal Appeals. The court has independently determined that petitioner's state writ remains pending. Therefore, it is not necessary for petitioner to answer this interrogatory.
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 claims 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). 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.
The issues presented by petitioner in his federal writ are included in his application for state post-conviction relief. ( See Spears Quest. #1). However, the state habeas proceeding is still pending. Consequently, the Texas Court of Criminal Appeals has never had an opportunity to consider petitioner's claims. The court therefore concludes that this case must be dismissed.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state remedies.