United States District Court, N.D. Texas, Dallas Division
ROBERTO BARRIENTOS a/k/a ROBERTO MARTINEZ, ID # 17044041, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Based on the relevant findings and applicable
law, the habeas corpus petition should be
DISMISSED without prejudice for failure to
exhaust state court remedies.
Arnoldo Barrientos, aka Roberto Martinez, (Petitioner), an
inmate in the Texas Department of Criminal Justice (TDCJ)
Gurney Unit, filed a petition for writ of habeas corpus under
28 U.S.C. § 2254 that was received on February 21, 2018
(doc. 7). The respondent is Lorie Davis, Director of the
Texas Department of Criminal Justice (TDCJ), Correctional
Institutions Division (Respondent). He challenges his
conviction in Cause No. F14-00302 in Criminal District Court
No. 3 of Dallas County, Texas.
September 17, 2014, Petitioner was convicted of failure to
register as a sex offender and sentenced to seven years'
imprisonment. See www.dallascounty.org (search for
petitioner). The judgment was affirmed on appeal. See
Martinez v. State, No. 05-14-01238-CR, 2015 WL 6750812
(Tex. App. - Dallas Nov. 4, 2015). His petition for
discretionary review was refused on April 6, 2016. See
Martinez v. State, PD-1590-15 (Tex. Crim. App. Apr. 6,
2016). He did not file a state habeas corpus application.
See www.txcourts.gov (search for petitioner).
Petitioner filed a 28 U.S.C. § 2254 petition that was
dismissed because his claim of ineffective assistance of
counsel was not exhausted by his appeal and petition for
discretionary review, and he had not filed a state habeas
application. See Martinez v. Davis, No.
3:16-CV-2700-G (N.D. Tex. Oct. 11, 2016).
now asserts that he was erroneously referred to as a person
who does not follow the law and who creates victims, and that
the duty to register was based on wrongful convictions for
sexual offenses. (See doc. 7 at 13, 14.)
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 the claim to the Texas Court of
Criminal Appeals in a petition for discretionary review (PDR)
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.
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 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).
Petitioner has not fairly presented the claims he raises in
his federal petition to the Court of Criminal Appeals. He did
not raise the claims on appeal. On appeal, he raised issues
concerning the State's objection to a question, the
appropriate felony degree of the offense, and the correct
name of defense counsel. See Martinez, 2015 WL
6750812. He has not filed a state habeas application. The
Court of Criminal Appeals has therefore not had an
opportunity to review the claims raised in his 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 not entitled to habeas corpus relief for
failure to exhaust his state remedies.
habeas corpus petition should be DISMISSED
without prejudice for failure to exhaust state court
FOR SERVICE AND NOTICE OF RIGHT TO
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 fourteen 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 ...