CLAYBON v. COCKRELL, (N.D.Tex. 2002)

PAUL D. STICKNEY, UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:

Nature of the 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 incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.

Statement of the Case: On September 27, 1993, petitioner pled guilty to indecency with a child. S.H. Tr. at 2. On March 1, 2001, the court of appeals affirmed the conviction. Claybon v. State, Nos. 05-00-00116-CR, 05-00-00117-CR, 2001 WL 200122, at *2 (Tex.App. — Dallas Mar. 1, 2001, pet. ref'd). On June 20, 2001, the Texas Court of Criminal Appeals denied without written order a filing it construed as a motion for leave to file a state petition for writ of habeas corpus. See Ex parte Claybon, No. 49,534-01, slip op. (Tex.Crim.App. June 20, 2001). Whether petitioner filed a state writ is the subject of some dispute between the parties. ( Compare Letter from Claybon to the Court filed Dec. 19, 2001, (indicating that petitioner submitted a state writ on July 16, 2001) with Answer at 2 (indicating that petitioner has filed no state writ other than one construed by the Texas Court of Criminal Appeals as a motion for leave to file an original state writ)). On August 27, 2001, petitioner filed the instant federal petition. On December 3, 2001, respondent filed an answer wherein she contends that petitioner has not exhausted his state remedies. Petitioner thereafter filed a letter in which he contends that he has exhausted his state remedies.

In the instance federal petition, petitioner raises four grounds for relief: (1) the records from his plea hearing have been lost and destroyed; (2) the trial judge predetermined his sentence; (3) ineffective assistance of counsel; and (4) his plea was involuntary. (Pet. for Writ of Habeas Corpus at 1.) He raised Claims 1 and 2 on direct appeal to the court of appeals. (See Appellant's Brief found in the state court records provided by respondent.) He also specifically raised these two claims in his petition for discretionary review to the Texas Court of Criminal Appeals and argued that he received ineffective assistance of counsel. (See Original Pet. for Discretionary Review found in the state court records provided by respondent.) Even with the liberal construction given to claims of pro se litigants the Court does not find that petitioner raised the voluntariness of his plea in either his direct appeal or in his petition for discretionary review, despite his argument that the inability to obtain the records from his plea hearing has prevented him from determining whether his plea was voluntary.

Findings: 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. Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). 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, 762 F.2d at 432. To exhaust in accordance with § 2254, a petitioner must fairly present all claims to the state courts prior to raising them in federal court. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993).

A federal district court may notice sua sponte the lack of exhaustion. Shute v. State, 117 F.3d 233, 237 (5th Cir. 1997). It is well-settled, furthermore, that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). 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); Bautista, 793 F.2d at 110.

In this case, petitioner has not fairly presented all of his claims to the Texas Court of Criminal Appeals. He has either filed no state writ or, if he has filed such a writ, the Texas Court of Criminal Appeals has not yet considered it. Neither his direct appeal, nor his petition for discretionary review, furthermore, raises the involuntary-plea claim.

In addition, petitioner asserts his claim of ineffective assistance of counsel for the first time in his petition for discretionary review. That assertion does not suffice to exhaust his state remedies for that claim. To exhaust one's state remedies, one must present his claims in a procedurally proper manner. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). Petitioner has not done so with respect to his ineffective-assistance claim. One does not satisfy the exhaustion requirement, through direct appeal, by raising a claim "in the Texas Court of Criminal Appeals without first obtaining review by an intermediate appellate court." Myers v. Collins, 919 F.2d 1074, 1077 (5th Cir. 1990). The "exhaustion doctrine . . . requires that the chosen avenue of post-conviction relief, whether direct or collateral, be pursued in such a manner so as not to present claims to a state's appellate courts for the first and only time in a petition for discretionary review." Id.

To properly exhaust one's state remedies, furthermore, one must present the same legal theory to the state court for consideration that is presented to the federal court for consideration. The rule of exhaustion "furthers the interest in the efficiency of federal habeas corpus, by assuring that, in general, the factual and legal bases surrounding a petitioner's constitutional claim or claims will have been developed in a prior adjudication." Harris v. Reed, 489 U.S. 255, 269 (1989) (O'Connor, J., concurring; emphasis added). When a federal petitioner presents a claim under a legal theory not presented to the state court, he has not exhausted his state remedies even though the claim may arise under the same factual basis as a different claim that was presented to the state court for consideration.

In short, the Texas Court of Criminal Appeals has had no opportunity to review Claims 3 and 4. Accordingly, a ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose v. Lundy, 455 U.S. 509, 518 (1982) (the exhaustion requirement is "designed to protect the state courts" role in the enforcement of federal law and prevent the disruption of state judicial proceedings"). Petitioner is, therefore, not entitled to habeas corpus relief for failure to exhaust his state remedies. Having already filed a petition for discretionary review, petitioner must pursue his state remedies through a proper state writ that results in a decision by the Texas Court of Criminal Appeals.

For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant habeas corpus petition be DISMISSED without prejudice for failure to exhaust state court remedies.

The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).