Opinion
No. 3:04-CV-0563-K.
September 27, 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 a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Michael Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) in Iowa Park, Texas. Respondent is the Director of TDCJ-CID. The court issued process in this case.
Statement of the Case: Petitioner was charged with the offense of injury to a child in the 195th District Court of Dallas County, Texas, Cause No. F00-00858-N. After the jury found him guilty, and after the court entered a deadly-weapon finding, the jury assessed punishment at forty years imprisonment. His conviction was affirmed on direct appeal,Isaac v. State, No. 05-01-01769-CR (Tex.App.-Dallas Feb. 6, 2003), and his petition for discretionary review was refused,Isaac v. State, No. 373-03 (Tex.Crim.App. Apr. 9, 2003) (unpublished). Petitioner did not subsequently file a state application for habeas corpus relief pursuant to art. 11.07, Texas Code of Criminal Procedure.
In this federal habeas petition, filed on March 17, 2004, Petitioner challenges (1) the failure to grant him a continuance; (2) the admission of extraneous-offense evidence at the guilt-innocence phase of his trial; (3) the admission of hearsay testimony; (4) the admission of photographs of the victim; (5) the sufficiency of the evidence presented to corroborate the testimony of his accomplice; (6) the failure to give a jury instruction on accomplish witness testimony; and (7) the ineffective assistance of counsel at trial and on appeal.
In response to this court's order to show cause, Respondent filed an answer along with the state court record, seeking dismissal of the petition for failure to exhaust state court remedies. On July 9 and July 19, 2004, Petitioner filed a reply/objection. In his latter pleading, he requests this court to dismiss this case without prejudice in its entirety because he has failed to exhaust state court remedies with respect to two of his grounds as asserted in Respondent's answer. (Petitioner's mot. to dism. at 4).
Because the latter response sought to dismiss his petition in its entirety, the Magistrate Judge notified Petitioner that any subsequently filed petition may be barred by the one-year statute of limitations, and required him to notify the court whether he sought to dismiss the petition in its entirety or only the unexhausted grounds — i.e. ground one and portion of ground seven (See Order filed on August 12, 2004). As of the date of filing of this recommendation, Petitioner has not filed a response to this court's order.
Findings and Conclusions: It is well settled that a state prisoner must exhaust all available state court habeas corpus remedies before a federal court should 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). Texas prisoners may satisfy that requirement by presenting the factual and legal substance of each of their claims to the Texas Court of Criminal Appeals in a petition for discretionary review while appealing their state criminal conviction, or in a state writ application filed pursuant to article 11.07, Texas Code of Criminal Procedure. Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998); Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432; see also Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990).
A review of the state court record reflects that Petitioner has not satisfied the exhaustion requirement with respect to ground one (that the trial court's failure to grant a continuance the morning of September 11, 2001, violated his due process rights), and ground seven (that trial counsel rendered ineffective assistance in failing to provide an expert witness for trial, and that appellate counsel failed to provide Petitioner with copies of the trial record). Petitioner failed to raise the above claims in the course of his direct appeal before the court of appeals, and in his petition for discretionary review before the Court of Criminal Appeals. Nor has he filed an art. 11.07 application, raising those claims.
Because the petition raises both exhausted and unexhausted grounds for habeas relief, the district court should dismiss it without prejudice as a mixed petition, "leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Rose v. Lundy, 455 U.S. at 510, 102 S. Ct. at 1199. RECOMMENDATION:
It is well settled in the Fifth Circuit that normally mixed habeas petitions must be dismissed under Rose v. Lundy. See Graham v. Johnson, 168 F.3d 762, 777-78 (5th Cir. 1999); see also Wilder v. Cockrell, 274 F.3d 255, 263 n. 2 (5th Cir. 2001). But see Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003),pet. for cert. granted (June 28, 2004) (No. 03-9046) (expected to resolve circuit split on whether a federal court can stay a mixed habeas petition, when the stay is necessary to permit a petitioner to exhaust claims in state court without having the one-year limitation period bar the right to a federal petition).
In the event Petitioner wishes to amend the petition in this case by moving to dismiss his unexhausted grounds, he is cautioned that "a prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions." Rose, 455 U.S. at 521, 102 S. Ct. at 1205; see also 28 U.S.C. § 2244(a) and (b) (setting out procedures for second or successive habeas corpus applications). Petitioner is also cautioned that the Antiterrorism and Effective Death Penalty Act imposes a one-year limitation period on the time within which a state prisoner can seek federal habeas corpus relief. See 28 U.S.C. § 2244(d).
For the foregoing reasons, it is recommended that Petitioner's motion to dismiss be granted, and that the district court dismiss the habeas corpus petition without prejudice as a mixed petition.
The Clerk will mail a copy of this recommendation to Petitioner, #1064693, TDCJ, Michael Unit, P.O. Box 4500, Tennessee Colony, Texas 75886, and to Counsel for Respondent.