Opinion
CIVIL ACTION NO. 1:02-CV-078-C
May 3, 2002
ORDER
On this day the Court considered the pro se Petition for Writ of habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254 by Petitioner Chad Fitzgerald Hale on April 19, 2002. Petitioner complains that he was arrested in September of 2001 pursuant to a "blue" warrant on an application to revoke parole, but be was also charged with two misdemeanor thefts, evading arrest, and criminal trespass. He alleges that he subsequently pleaded guilty to one theft and was found not guilty by a jury on the second theft, and the other charges were dismissed. His revocation heating was scheduled for December 21, 2001, but on December 20, 2001, his parole officer advised Petitioner that his hearing had been cancelled because he still had unresolved charges pending; Petitioner argues that he is being held in the Taylor County Jail; he has no criminal charges pending; and he has not been able to obtain bail. The Respondent has not filed an answer, but the Court is of the opinion that Petitioner has failed to exhaust his state court remedies. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (stating that the district court may summarily dismiss the petition "if it plainly appears from the face of the petition and any exhibits attached to it that the petitioner is not entitled to any relief in the district court"). See also Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir 1999) (stating that the district court has the power to screen out frivolous motions and eliminate the burden that would fall on the respondent to file an unnecessary answer).
Petitioner filed the instant petition on April 19, 2002; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (determining that AEDPA applies to noncapital habeas petitions filed after April 24, 1996, the effective date of the statute); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997) (holding that the relevant date for determining applicability of the AEDPA to habeas corpus petitions is the date the actual petition is filed). Under 28 U.S.C. § 2254(b)(1), as amended by the ABDPA, a state prisoner may not obtain federal habeas relief until he has exhausted the remedies available in the state courts; or he demonstrates the absence of state court remedies or circumstances rendering the state court remedies ineffective. See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) ("A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief.").
If Petitioner is not in custody pursuant to a parole revocation warrant but pending charges, his claims maybe more properly raised under 25 U.S.C. § 2241, but he has still failed to exhaust his state court remedies. United States v. Gabor, 905 F.2d 76. 78 n. 2 (5th Cir. 1992) (holding that the exhaustion of administrative remedies is a prerequisite to the filing of a petition under § 2241).
"The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court." Id. The federal habeas petitioner "need not spell out each syllable of the claim before the state court to satisfy the exhaustion requirement," but he must demonstrate that his federal claim is the "substantial equivalent" of the state claim. Id. The highest state court in Texas for criminal matters is the Texas Court of Criminal Appeals. Richardson v Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). A habeas petitioner has not exhausted his state remedies if he has the right to raise the question(s) by any available procedure under state law. Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
Petitioner clearly states in his federal petition that he presents his claims for the first time in the instant petition and "did not file in state court" Accordingly, the Court finds that Petitioner's Petition for Writ of Habeas Corpus should be dismissed without prejudice to his right to pursue his state court remedies. See Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir. 1998) (holding that a district court may sua sponte raise the failure to exhaust and apply that doctrine to bar federal litigation until the claims are exhausted).
SO ORDERED.
Any pending motions are denied.
The Court cautions Petitioner that the habeas corpus statute, as amended by the AEDPA, imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court, and this provision will be applicable to any subsequent petition that Petitioner may tile. See 28 U.S.C. § 2244(d).