Opinion
No. 3-04-CV-0608-N.
May 14, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Danny Rashon Wilmore, 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 was convicted of aggravated robbery and sentenced to 40 years confinement. His conviction and sentence were affirmed on direct appeal. Wilmore v. State, 05-01-01399-CR (Tex.App. — Dallas, Oct. 23, 2002). A petition for discretionary review was dismissed as untimely. Wilmore v. State, No. PD-2083-02 (Tex.Crim.App. Mar. 7, 2003). Petitioner now seeks federal habeas relief on the grounds that his due process rights were violated, the court of appeals failed to apply the correct rule of law, and he received ineffective assistance of counsel.
On April 27, 2004, the court sent written interrogatories to petitioner in order to determine whether these claims were presented to the Texas Court of Criminal Appeals. See Spears v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986). Petitioner filed his interrogatory answers with the district clerk on May 12, 2004. The court now determines that petitioner has failed to exhaust his state remedies.
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 did not timely file a petition for discretionary review and has not sought state post-conviction relief under Tex. Code Crim. Proc. Ann. art. 11.07. ( See Spears Quest. #1). Consequently, the Texas Court of Criminal Appeals has never had an opportunity to consider his claims. The court therefore concludes that this case must be dismissed.
When asked if the claims raised in his federal habeas petition had ever been presented in a state writ of habeas corpus or other state proceeding, petitioner responded, "None of the grounds presented in this petition has [sic] been asserted before in a state writ of ha[b]eas corpus or other state proceeding." ( Spears Quest. #1).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state remedies.