Opinion
3:04-CV-0198-L
March 15, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Ellis Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Huntsville, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process.
Statement of the Case: A jury convicted Petitioner of theft of property in Criminal District Court No. 2, Dallas County, Texas, Cause No. F98-47946-TI. On February 4, 2002, the Eighth District Court of Appeals at El Paso affirmed Petitioner's conviction and sentence. Pugh v. State, No. 08-00-00068-CR (Tex.App.-El Paso Feb. 14, 2002). No petition for discretionary review was filed.
On April 2, 2003, Petitioner filed a state application for writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure. (Petition ¶ 11). Findings were issued by the trial court on or about January 30, 2004. (See Petitioner's pleading filed on March 3, 2004, at 2). The application is presently pending before the Texas Court of Criminal Appeals for ruling. Ex parte Pugh, No. 57, 527-02.
In his federal petition, filed on February 2, 2004, Petitioner raises sixteen grounds for habeas relief.
Findings and Conclusions: It is well settled that a state prisoner must exhaust all available state court habeas corpus remedies before a federal court will consider the merits of his claims. 28 U.S.C. § 2254(b) and (c). The exhaustion requirement is designed to "protect the state court's role in the enforcement of federal law and prevent the disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518 (1982). In order to exhaust, a petitioner must "fairly present" all of his claims to the highest state court for review. Shute v. State of Texas, 117 F.3d 233, 237 (5th Cir. 1997); Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985).
A review of the petition reflects that Petitioner has not satisfied the exhaustion requirement. His art. 11.07 application is presently pending before the Texas Court of Criminal Appeals. Ex parte Push, No. 57, 527-02.
Petitioner claims that he has experienced an inordinate delay in the adjudication of his art. 11.07 application as a result of the eight and one-half month delay between the filing of the trial court's order designating issues on May 2, 2003, and the filing of the findings and conclusions on January 30, 2004. He, thus, requests this court to dispense with the exhaustion requirement and to proceed to the merits of his claims.
The above request should be rejected. The delay at issue in this case is far less than the seventeen-month delay which the Fifth Circuit found to be inordinate in St. Jules v. Beto, 462 F.2d 1365 (5th Cir. 1972). Moreover, the findings issued on January 30, 2004, and the transfer of the petition to the Texas Court of Criminal Appeals for ruling on February 24, 2004, leads this court to conclude that the petition has not been completely dormant. Cf. Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978) (holding that state remedy was ineffective where state habeas petition had been completely dormant for over one year, and the state had offered no reason for its delay); and Warren v. McCotter, 1985 WL 5999, *1 (S.D. Tex. Oct. 2, 1985) (finding state remedy to be inadequate where petitioner had waited for over twenty months for a ruling by the Texas Court of Criminal Appeals on his art. 11.07 application).
Accordingly, the petition for a writ of habeas corpus should be dismissed without prejudice for failure to exhaust state habeas corpus remedies. See Rose v. Lundy, supra. RECOMMENDATION:
The court cautions Petitioner that the recent amendment to the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court, see 28 U.S.C. § 2244(d), and that this provision is applicable to this and any subsequent petition that Petitioner may file in this court.
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be dismissed without prejudice for failure to exhaust state court remedies. A copy of this recommendation will be mailed to Petitioner.