JOE W. CONWAY, Petitioner,
STATE OF TEXAS, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ANDREW W. AUSTIN, Magistrate Judge.
The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Petitioner's "Motion to Vacate, " which has been construed as an Application for Writ of Habeas Corpus. Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state court remedies.
According to Petitioner, on December 16, 2003, he pleaded guilty to possession of a controlled substance pursuant to a plea bargain agreement and was sentenced to three years in prison. Petitioner admits he waived his appeal. He contends he has exhausted his state court remedies because no appeal is available.
Petitioner indicates he was also charged with a Class B misdemeanor, and that case is still pending. According to Petitioner, he has a January 21, 2014, court date set in his misdemeanor case. Petitioner appears to challenge both his felony case and his misdemeanor case. He has not filed state applications for writ of habeas corpus challenging either case.
A. 28 U.S.C. § 2254
To the extent Petitioner challenges his felony conviction and sentence his claims are brought pursuant to 28 U.S.C. § 2254. A fundamental prerequisite to federal habeas corpus relief under 28 U.S.C. §2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief. Sterling v. Scott , 57 F.3d 451, 453 (5th Cir. 1995), cert. denied, 116 S.Ct. 715 (1996). Section 2254(b) provides that:
(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that:
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
28 U.S.C. § 2254. This requirement is designed in the interests of comity and federalism to give state courts the initial opportunity to pass upon and correct errors of federal law in a state prisoner's conviction. Picard v. Connor , 404 U.S. 270, 275-76 (1971). The purpose and policy underlying the exhaustion doctrine is to preserve the role of the state courts in the application and enforcement of federal law and prevent disruption of state criminal proceedings. Rose v. Lundy , 455 U.S. 509, 518 (1982)(citing, Braden v. 30th Judicial Circuit Court of Kentucky , 410 U.S. 484, 490-91 (1973)).
A petition under 28 U.S.C. § 2254 "must be dismissed if state remedies have not been exhausted as to any of the federal claims." Castille v. Peoples , 489 U.S. 346, 349 (1989). The exhaustion doctrine "requires that the Texas Court of Criminal Appeals be given an opportunity to review and rule upon the petitioner's claim before he resorts to the federal courts." Richardson v. Procunier , 762 F.2d 429, 431 (5th Cir. 1985). Once a federal claim has been fairly presented to the Texas Court of Criminal Appeals, either through direct appeal or collateral attack, the exhaustion requirement is satisfied. See generally, Castille , 489 U.S. at 351. In order to avoid piecemeal litigation, all grounds raised in a federal application for writ of habeas corpus must first be presented to the state's ...