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
convictions in Cause Nos. F02-72108 and F02-72109 in Criminal
District Court No. 7 of Dallas County, Texas.
April 27, 2006, Petitioner was convicted of indecency with a
child in each case. See Barrientos v. State, Nos.
05-06-00675-CR and 05-06-00676-CR, 2007 WL 1492049 (Tex. App.
- Dallas May 23, 2007). The judgment was affirmed on appeal.
See id. His petitions for discretionary review were
refused. See Barrientos v. State, PD-1624-07 and PD
1625-07. He did not file a petition for discretionary review
or a state habeas application. See www.txcourts.gov
(search for petitioner).
asserts that the police report and charges were filed by a
“bad element of the DSO” and that the appellate
court erred in finding that he tried to kidnap the
complainants. (See doc. 7 at 12, 13.)
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 contended that
the evidence was insufficient to support the convictions and
that he was denied his right to a speedy trial. See
Barrientos, 2007 WL 1492049. 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 wh ch 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 ...