Opinion
No. 3:02-CV-243-R
April 11, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
PROCEDURAL BACKGROUND
This is a habeas corpus proceeding brought under 28 U.S.C. § 2254. Petitioner is in the custody of the Texas Department of Criminal Justice, Institutional Division.
On November 29, 2000, Petitioner was convicted of burglary of a habitation in the 203rd District Court, Dallas County, Texas. (Pet. p. 2). Petitioner did not appeal his conviction. ( Id. at p. 3). Petitioner has not filed any state applications for habeas relief. ( Id. at pp. 3-4).
On January 14, 2002, Petitioner filed this federal habeas corpus petition. Petitioner alleges: (1) his due process rights were violated; (2) he received ineffective assistance of counsel; (3) his Miranda rights were violated; and (4) exculpatory evidence was excluded from his trial. ( Id. at pp. 7-8).
The Court sua sponte finds this case should be dismissed without prejudice for failure to exhaust state remedies.
EXHAUSTION OF STATE COURT REMEDIES
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). 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); Bautista, 793 F.2d at 110.
The petition shows that Petitioner did not appeal his conviction, and he has not filed any state applications for habeas relief. Petitioner has therefore not presented his claims to the Texas Court of Criminal Appeals. Although the terms of § 2254(b)(2) provide that an application for a writ of habeas corpus may be denied on the merits notwithstanding the applicant's failure to exhaust his state court remedies, complete exhaustion assists the federal courts in their review because federal claims that have been fully exhausted in state courts will necessarily be accompanied by a more complete factual record. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
RECOMMENDATION
For the foregoing reasons, the Court recommends that the District Court dismiss the petition without prejudice for failure to exhaust state court remedies.