Opinion
No. 3:02-CV-899-D
October 21, 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 (TDCJ-ID).
On January 16, 1997, Petitioner was convicted of burglary of a habitation in the 204th District Court, Dallas, Texas. (Pet. p. 2). Petitioner was sentenced to 16 years imprisonment. (Id.). On March 30, 1999, the Texas Fifth District Court of Appeals affirmed Petitioner's conviction. (Pet. p. 3).
On June 20, 2000, Petitioner filed a state application for habeas corpus. Exparte Neyra, Application No. 46,507-01 at 3. On October 11, 2000, the Texas Court of Criminal Appeals granted relief as to Petitioner's claim that his appellate counsel was ineffective for failing to timely advise Petitioner of his right to pursue a petition for discretionary review. Ex parte Neyra, No. 73,930 (Tex.Crim.App. Oct. 11, 2000). The Court of Criminal Appeals allowed Petitioner to file an out-of-time petition for discretionary review. On January 29, 2001, Petitioner filed a petition for discretionary review. On April 18, 2001, the Court of Criminal Appeals denied the petition. (Pet. p. 3).
On April 16, 2002, Petitioner filed this petition for habeas relief. Petitioner argues he received ineffective assistance of trial counsel. On September 23, 2002, Respondent filed a motion to dismiss for failure to exhaust state remedies.
A petitioner must fully exhaust state remedies before seeking federal habeas relief. See 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. MeCotter, 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 State record shows that the Texas Court of Criminal Appeals has not considered Petitioner's ineffective assistance of trial counsel claim on the merits. On June 20, 2000, Petitioner filed a state petition for writ of habeas corpus arguing that both his trial counsel and his appellate counsel were ineffective. On October 11, 2000, the Court of Criminal Appeals found that Petitioner's appellate counsel was ineffective for failing to timely notify Petitioner of his right to file a petition for discretionary review. The Court therefore granted Petitioner the right to file an out-of-time petition for discretionary review. The Court did not consider Petitioner's claim of ineffective assistance of trial counsel because the granting of an out-of-time appeal restores the pendency of the direct appeal. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). There is no habeas jurisdiction while a direct appeal is pending, therefore the Court's consideration of Petitioner's ineffective assistance of trial counsel claim would have been premature. Id. (citing Ex parte Brown, 662 S.W.2d 3, 4 (Tex.Crim.App. 1983)); see also Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (finding that where a petition for discretionary review is viable, the direct appeal continues). Because the Court of Criminal Appeals did not address the merits of Petitioner's ineffective assistance of trial counsel claim, he has failed to exhaust his state remedies. 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 habeas corpus petition without prejudice for failure to exhaust state court remedies.