United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD, UNITED STATESAMAGISTRATE JUDGE
Christopher Dewayne James, a Texas prisoner, filed a pro
se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. The District Court referred the resulting civil
action to the United States magistrate judge, pursuant to 28
U.S.C. § 636(b) and a standing order of reference. For
the following reasons, the petition should be denied.
2016, Petitioner pleaded guilty to aggravated robbery and was
sentenced to eight years imprisonment. State of Texas v.
Christopher Dewayne James, No. F-1576759-U (291st Dist.
Ct., Dallas County, Tex., December 19, 2016). (ECF No. 16-2
at 12). He did not file an appeal. (ECF No. 3 at 3).
Thereafter, Petitioner filed a state habeas petition, Ex
parte James, No. 87, 347-01, which the Texas Court of
Criminal Appeals denied without written order on the findings
of the trial court without a hearing. (ECF No. 16-1).
then filed the instant § 2254 petition, in which he
(1) The State failed to explain why his judgment and plea
agreement state the sentence “shall run
(2) His trial counsel provided ineffective assistance at
a. incorrectly advising Petitioner that he would be returned
to federal custody after the state proceedings;
b. failing to adequately investigate whether Petitioner's
state and federal sentences would be served concurrently;
c. incorrectly advising Petitioner that his state and federal
sentences would be served concurrently.
claims that the State failed to explain why the judgment and
plea agreement state his sentence “shall run
concurrent” and that his counsel incorrectly advised
him that he would be returned to federal custody after the
state proceedings (claims 1 and 2(a)) are unexhausted and
petitioner must fully exhaust state remedies by fairly
presenting the factual and legal basis of any claim to the
highest state court for review before seeking federal habeas
relief. See 28 U.S.C. § 2254(b); Johnson v.
Cain, 712 F.3d 227, 231 (5th Cir. 2013). A Texas
prisoner may satisfy this requirement by presenting both the
factual and legal substance of his claims to the Court of
Criminal Appeals in an application for a state writ of habeas
corpus under Article 11.07 of the Texas Code of Criminal
Procedure. Whitehead v. Johnson, 157 F.3d 384, 387
(5th Cir. 1998). Failure to exhaust is generally a procedural
bar to federal habeas review, although the federal court may
excuse the bar if the petitioner can demonstrate either cause
and prejudice for the default or that the court's failure
to consider the claims will result in a fundamental
miscarriage of justice. Ries v. Quarterman, 522 F.3d
517, 523-24 (5th Cir. 2008) (citing Coleman v.
Thompson, 501 U.S. 722, 750 (1991)).
did not appeal his conviction, nor did he present in his
state habeas application his claims that the State failed to
explain why the judgment and plea agreement state his
sentence “shall run concurrent” and that his
counsel incorrectly advised him that he would be returned to
federal custody after the state proceedings. See ECF
No. 16-2 at 16-33. He therefore failed to exhaust these
because these claims are not substantially equivalent to any
claim presented to the Court of Criminal Appeals, they do not
meet the “fairly presented” requirement and are
not properly exhausted. See Whitehead, 157 F.3d at
387. Petitioner's failure to exhaust state court remedies
constitutes a procedural default that bars this Court from
considering the claims. Morris v. Drekte, 413 F.3d
484, 491-92 (5th Cir. 2005); Ries, 522 F.3d at
does not address the issue of exhaustion in his habeas
petition or the memorandum in support of his petition.
(See ECF Nos. 3, 4). He has not alleged or
demonstrated cause for the default and actual prejudice, or
that a fundamental miscarriage of justice would occur if the
Court were to refuse to consider his claims. See
Coleman, 501 U.S. at 750. Accordingly, claims 1 and 2(a)
afford no relief to Petitioner.