Opinion
3:01-CV-0393-L.
May 15, 2001
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, the subject cause has previously 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 filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently confined at the Dallas County Jail in Dallas, Texas. Respondent is Jim Bowles, Sheriff of Dallas County. No process has been issued in this case. However, on April 26, 2001, the magistrate judge issued a questionnaire to Petitioner, who filed his answers on May 3, 2001.
Statement of the Case: On April 13, 2001, Petitioner was convicted of possession with intent to deliver a controlled substance and "UPF" (Unlawful Possession of a Firearm by a Felon). (Answer to Question 1). Punishment was assessed at twenty years and twelve years in the Texas Department of Criminal Justice — Institutional Division, to run concurrently. (Answer to Question 1). Petitioner filed a notice of appeal, following sentencing. (Answer to Question 2).
In the present petition, Petitioner challenges (1) the absence of a "possessory interest" and of a warrant; (2) the officer's action in coming into contact with the owner of 7225 Fair Oaks Avenue #804; and (3) his illegal entrapment. (Petition ¶ 20).
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, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (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 Texas state prisoner's state remedies are not exhausted until the Texas Court of Criminal Appeals denies relief on the factual and legal grounds asserted when raised in a PDR or when raised in a post-conviction application for habeas corpus relief pursuant to art. 11.07, Texas Code of Criminal Procedure. Richardson, 762 F.2d at 429.
A review of the petition reflects that Petitioner has not satisfied the exhaustion requirement. The Court of Criminal Appeals has not had an opportunity to consider the claims raised in this federal habeas action. Petitioner concedes that he filed a notice of appeal after sentencing on April 13, 2001. (Answer to Question 2). He also concedes filing an application for a writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure, which remains pending before the state court. (Answer to Question 4). Accordingly, the petition for a writ of habeas corpus should be dismissed without prejudice to Petitioner's right to refile after exhausting his state court 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 habeas corpus petitions in federal court, and that this provision will be applicable to any subsequent petition that Petitioner may file in this court. See 28 U.S.C. § 2244(d).
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. The clerk will mail a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.