Williams v. Thaler, Director TDCJ-CID

Filing 4

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The Magistrate Judge hereby recommends that the instant habeas corpus petition be DISMISSED without prejudice for failure to exhaust state court remedies. (see order) (Ordered by Magistrate Judge Irma C Ramirez on 10/19/2009) (klm)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DERRIC WILLIAMS ID # 1202848, Petitioner, vs. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. ) ) ) ) ) ) ) ) )

No. 3:09-CV-1933-G-BH Referred to U.S. Magistrate Judge

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 Court, this case has been referred to the United States Magistrate Judge for findings, conclusions, and recommendation. I. BACKGROUND Petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice Correctional Institutions Division (TDCJ-CID), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent is Rick Thaler, Director of TDCJ-CID. On October 27, 2006, petitioner pled guilty and was convicted of aggravated robbery in Cause Nos. F02-73601-QU, F03-40783-WU, and F03-40784-WU. (See www.tdcj.state.tx.us, search for petitioner's offender information; see also www.dallascounty.org, search for petitioner's criminal background.).1 In his federal petition, petitioner does not refer or cite to any direct appeal or state writ that he has filed in these cases, and the relevant public records reflect that he has not, in fact, either appealed these convictions or filed state habeas applications. (See www.dallascounty.org,

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Petitioner does not list these cause numbers in his federal petition, but he does say he was sentenced to thirty years and refers to being indicted for aggravated robbery. (Petition at 2, 7). TDCJ records and Dallas County records both reflect that he pled guilty to and was convicted of aggravated robbery in these three cases on the same date and was sentenced to thirty years in each case.

search for criminal background for petitioner; see also www.cca.courts.state.tx.us, search for petitioner). II. EXHAUSTION A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). To exhaust in accordance with § 2254, a petitioner must fairly present the factual and legal basis of any claim to the highest available state court for review prior to raising it in federal court. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas, a 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). In this case, petitioner has not fairly presented any claim to the Court of Criminal Appeals. He has not appealed his convictions or filed any state applications for writ of habeas corpus. The Court of Criminal Appeals has simply had no opportunity to review the claims raised in the instant federal petition. A federal district court may raise the lack of exhaustion sua sponte. Shute v. State, 117 F.3d 233, 237 (5th Cir. 1997). It is well-settled 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

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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). Because petitioner has not fairly presented any claim to the Texas Court of Criminal Appeals, that court has had no opportunity to review the claim raised in the instant federal petition. A ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (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. III. RECOMMENDATION 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. SIGNED this 19th day of October, 2009.

___________________________________ IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

___________________________________ IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

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