Opinion
CIVIL ACTION NO. 4:01-CV-0524-Y
June 29, 2001
ORDER OF SUMMARY DISMISSAL
In connection with the above-styled and numbered cause, this Court has reviewed the petition for habeas corpus by a person in state custody and, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243, it appears that this petition should be summarily dismissed. From the face of the petition, the Court determines that Petitioner has filed this petition before he has properly exhausted state remedies.
Section 2243, governing applications for writs of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C. § 2243(emphasis added). Rule 4 of the Rules Governing Section 2254 Cases provides:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added). The Court of Appeals for the Fifth Circuit recently recognized a district court's authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir 1999).
Petitioner Dale Lee Price was convicted, after trial before a jury, on March 1, 2001, in the 213th District Court of Tarrant County, Texas, in Cause No. 0732334D, of the offense of possession of a controlled substance, namely heroin, of less than one gram. (Petition at ¶¶ 1-4.) Price received an enhanced sentence of twenty years' imprisonment. (Petition at ¶ 3.) Price filed a notice of appeal from his conviction. (Petition at ¶¶ 8-9.) He then filed in this Court, on May 19, 2001, his pro se federal petition for writ of habeas corpus with attached documentary exhibits pursuant to 28 U S.C. § 2254. Price challenges his conviction and sentence as violative of his various constitutional protections. (Petition at 7-8 and separately attached pages).
For purposes of this habeas-corpus proceeding, Price's federal habeas-corpus petition will be deemed filed when he handed over his pleading to prison authorities for mailing on May 19, 2001, and not this Court's file-stamp date of June 22, 2001. See Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998).
With regard to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a state court, 28 U.S.C. § 2254 requires that the applicant exhaust state-court remedies. See 28 U.S.C. § 2254(b)(1)(A); Anderson v. Harless, 459 U.S. 4 (1982). An applicant's federal writ of habeas corpus may not be granted unless the applicant has exhausted his state-court remedies. See 28 U.S.C. § 2254(b), (c). A claim must be presented to the highest court of the state to satisfy the exhaustion-of-state-court-remedies requirement. O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Richardson v, Procunier, 762 F.2d 429, 430 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). A Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review on direct appeal or a state habeas-corpus proceeding pursuant to TEX CODE CRIM. PROC. § 11.07. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). See also Stones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995) (holding that exhaustion of state remedies may be accomplished either directly or collaterally), citing, Myers v. Collins, 919 F.2d 1074, 1076-77 (5th Cir. 1990); Lowe v. Scott, 48 F.3d 873, 875 (5th Cir.) (noting that a petitioner who seeks to pursue an issue that he failed to raise on direct appeal must use available state collateral procedures to satisfy the exhaustion requirement), cert. denied, 515 U.S. 1123 (1995).
The terms of 28 U.S.C. § 2254(b) and (c) provide in pertinent part as follows:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
Price is currently prosecuting a direct appeal, challenging the subject conviction and/or sentence. He has filed no state applications for writ of habeas corpus. (Petition at ¶ 10.) His claims in this federal proceeding have, therefore, not been properly presented before the state courts and thereby exhausted. Price must first properly pursue his claims before the state courts. Only after he has fully exhausted his state-court remedies may he return to this Court. See Rose v. Lundy, 455 U.S. 509, 518 (1982). Thus, absent a showing that state remedies are inadequate, such showing not having been demonstrated by the petitioner, Price cannot now proceed in this Court upon an application for habeas corpus. See 28 U.S.C. § 2254; Fuller v. Florida, 473 F.2d 1383 (5th Cir. 1973); Frazier v. Jones, 466 F.2d 505 (5th Cir. 1972). Accordingly, dismissal of this federal habeas-corpus proceeding for lack of exhaustion is warranted so that Price can fully exhaust his state-court remedies and then return to this Court after exhaustion has been accomplished.
Telephonic communication with the Clerk of the Texas appellate court has confirmed that Price is currently prosecuting a direct appeal from his conviction. See Price v. State, No. 2-01-104-Cr. The communication further revealed that the notice of appeal was received by the court on March 6, 2001, and the appeal is proceeding, with the appellant's brief due to be filed shortly.
This Court reminds Petitioner that the amendments to the habeas-corpus statute impose a one-year statute of limitations for filing non-capital habeas-corpus petitions in federal court. 28 U.S.C. § 2244(d). Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final. In rare instances, the limitation period may run from a date later than the date on which the judgment became final, see 28 U.S.C. § 2244(d)(1)(B)-(D). In those instances, § 2244(d)(1)(D) is the applicable subsection (i.e., the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence). The statute of limitations is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. See 28 U.S.C. § 2244 (d)(2) Thus, Petitioner is hereby cautioned to be aware of the time limitation for habeas-corpus petitions filed after April 24, 1996.
It plainly appears from the face of the petition for writ of habeas corpus that petitioner Price has not exhausted state remedies, and is thus not entitled to seek the relief sought from the district court until he does exhaust state remedies. Under the circumstances, summary dismissal is appropriate pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and pursuant to 28 U.S.C. § 2243.
It is therefore ORDERED that Dale Lee Price's Petition for Writ of Habeas Corpus under 28 U.S C. § 2254 be, and is hereby, DISMISSED WITHOUT PREJUDICE except as to any application of the federal statute of limitations or other federal procedural bar that may apply.