United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR UNITED STATES DISTRICT JUDGE.
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by petitioner Pat Dee
Leatherman, a state prisoner confined in the Correctional
Institutions Division of the Texas Department of Criminal
Justice (TDCJ), against Lorie Davis, director of TDCJ,
Respondent. After considering the pleadings and relief sought
by Petitioner, the Court has concluded that the petition
should be dismissed without prejudice on exhaustion grounds.
September 9, 2002, pursuant to a plea agreement, Petitioner
pleaded guilty in Parker County, Texas, Case No. 14266, to
murdering his wife and was sentenced to 30 years'
confinement. Pet. 2-3, ECF No. 7. Petitioner did not appeal
his conviction or sentence. Id. at 3. He did,
however, challenge his conviction in three post-conviction
state habeas-corpus applications, filed between 2003 and
2007, to no avail. Adm. R., ECF No. 38.
federal petition, Petitioner raises three grounds for relief,
in which he claims he received ineffective assistance of
trial counsel; the state violated Brady by
withholding the recording of a phone call made by Mildred
King to Darlene Leatherman in January 2002; and newly
discovered evidence of his innocence in the form of-
affidavits from Darlene Leatherman, Doy Lou Leatherman, Pat
Dee Leatherman, and Jennifer Fikes; a hand written letter
from Mary Carol Baldree; a documented interview between
Attorney Michael K. Burns and Bobbie Whitworth.
Pet. 6-7, ECF No. 7.
RULE 5 STATEMENT
preliminary answer, Respondent asserts that Petitioner did
not properly exhaust his state court remedies as to the
claims raised and that the petition should therefore be
dismissed without prejudice so that Petitioner may exhaust
his claims in state court. Resp't's Answer 1, 4-6,
ECF No. 37.
seeking habeas corpus relief under § 2254 are required
to exhaust all claims in the state courts before requesting
federal habeas relief. 28 U.S.C. § 2254(b)(1),
Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999).
A state petitioner may satisfy the exhaustion requirement by
presenting both the factual and legal substance of his
claim(s) to the Texas Court of Criminal Appeals in either a
petition for discretionary review or, as in this case, a
state habeas-corpus proceeding pursuant to article 11.07 of
the Texas Code of Criminal Procedure. See Tex. Code
Crim. Proc. Ann. art. 11.07 (West 2015); Alexander v.
Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998); Bd.
of Pardons & Paroles v. Court of Appeals for the Eighth
Dist., 910 S.W.2d 481, 484 (Tex. Crim. App. 1995).
Petitioner has not yet filed a state habeas-corpus
application raising the claims presented and acknowledges
that one or more of his claims is raised for the first time
in this petition. Pet. 8, ECF No. 7. Petitioner seeks a stay
of this proceeding so that he may return to state court for
purposes of exhausting his claims. Mot., ECF No. 47.
limited circumstances, for good cause shown, stay and
abeyance is available to allow a petitioner to return to
state court to exhaust his previously unexhausted claims. A
stay is appropriate when there is (1) good cause for the
failure to exhaust, (2) the unexhausted claims are
potentially meritorious, and (3) there is no indication that
the petitioner engaged in intentionally dilatory litigation
tactics. Rhines v. Weber, 544 U.S. 269, 277-78
(2005). Petitioner provides no reason for his failure to
exhaust his state court remedies or proof that he has filed a
state habeas-corpus application in an effort to exhaust his
claims. The squandering of such an opportunity is exactly
what the exhaustion requirement was designed to prevent and,
as such, should not be excused.