SIFUENTES v. DRETKE

CHARLES BLEIL, Magistrate Judge

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.

Petitioner Richard Sifuentes, ID #741926, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), and is currently incarcerated at Fort Stockton, Texas.

Respondent Douglas Dretke is the Director of TDCJ-CID.

Apparently, in January 1994, Sifuentes was placed on deferred adjudication in state court for attempted murder. (Pet'r Mem. in Support at 2.) On February 1, 1996, his guilt was adjudicated and he was sentenced to seventeen years' confinement. (Pet. at 2.) Sifuentes did not directly appeal from the original plea proceedings or the proceeding adjudicating his guilt or seek post-conviction habeas corpus relief. (Id.) Sifuentes has filed an action in this court pursuant to 42 U.S.C. § 1983, which was dismissed on April 10, 2003. Sifuentes v. Tx. Bd of Pardons Paroles, No. 4:03-CV-0157-A. Sifuentes has now filed this federal petition for writ of habeas corpus.

Sifuentes raises four grounds for relief in which he contends TDCJ-CID is improperly applying the "1996-2001 parole guidelines test" to his case in violation of the Due Process and Ex Post Facto Clauses. (Pet. at 7-8 Attach.)

Dretke filed an answer seeking dismissal of Sifuentes's petition without prejudice on exhaustion grounds. (Resp't Answer at 3-5.) Sifuentes filed a reply.

Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).

For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the state. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Thus, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review or, or as in this instance, a post-conviction habeas corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2003); Anderson v. Johnson, 338 F.3d 382, 388 n. 22 (5th Cir. 2003).

It appears Dretke is correct in his assertion that Sifuentes has not exhausted his state court remedies in a procedurally correct manner with respect to the issues presented. See O'Sullivan, 526 U.S. at 842-88; Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432; Carter, 677 F.2d at 443. The Clerk of the Texas Court of Criminal Appeals, by his deputy, certifies that no state habeas application has been filed by Sifuentes in that court, and Sifuentes has not refuted the assertion. (Resp't Answer Ex. B.) In fact, Sifuentes concedes that he has not pursued state remedies because this court, in its order dismissing his § 1983 action in No. 4:03-CV-0157-A, informed him that he should pursue his claims by way of a petition for writ of habeas corpus. Sifuentes's explanation, however, does not excuse him from the exhaustion requirement. Because the state court has not been afforded a fair opportunity to consider the merits of Sifuentes's claims, the claims are unexhausted for purposes of federal habeas review. See Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002).

Accordingly, Sifuentes must first pursue his state habeas corpus remedies before seeking relief under § 2254. Absent a showing that state remedies are inadequate, such showing not having been demonstrated by Sifuentes, he cannot now proceed in federal court in habeas corpus. See 28 U.S.C. § 2254; Fuller v. Florida, 473 F.2d 1383, 1384 (5th Cir. 1973); Frazier v. Jones, 466 F.2d 505, 506 (5th Cir. 1972). Accordingly, dismissal of this federal habeas corpus proceeding for lack of exhaustion is warranted so that Sifuentes can fully exhaust his state court remedies and then return to this court, if he so desires, after exhaustion has been properly and fully accomplished.

Sifuentes's petition for writ of habeas corpus should be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar that may apply.

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until September 23, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 23, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.