Opinion
No. 3-04-CV-0586-N.
April 16, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Ricky Wayne White, 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 pled guilty to possession with intent to deliver a controlled substance and was sentenced to 20 years confinement. No appeal was taken. Instead, petitioner challenged the sufficiency of his indictment and the adequacy of his legal representation in an application for state post-conviction relief. That application is still pending. Petitioner also seeks relief on the same grounds in federal court.
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 recently challenged his conviction in an application for state post-conviction relief under article 11.07 of the Texas Code of Criminal Procedure. That application is still pending. Consequently, petitioner has failed to satisfy the exhaustion requirement.
Petitioner filed his state writ in the trial court on or about October 3, 2003. Upon inquiry by the court staff, the Dallas County district clerk confirmed that the writ is still pending.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state remedies.