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Garcia v. Davis

United States District Court, N.D. Texas, Dallas Division

July 4, 2019

Jesus Eden Garcia, #02128847, Petitioner,
v.
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division Div., [1] Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER, JUDGE

          Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was referred to the United States magistrate judge for case management, including findings and a recommended disposition. As detailed here, Petitioner Jesus Eden Garcia's petition for writ of habeas corpus under 28 U.S.C. § 2254 should be DISMISSED WITHOUT PREJUDICE as unexhausted.

         I. BACKGROUND

         Following a mistrial and a plea of not guilty, the trial court found Garcia guilty of continuous sexual abuse of a child younger than fourteen years and sentenced him to 25 years' imprisonment. State v. Garcia, No. F13-51340-X (Crim. Dist. Ct. No. 6, Dallas Cty., Tex., Mar. 28, 2017). His conviction was affirmed on direct appeal. Garcia v. State, No. 05-17-00356-CR, 2018 WL 1559872, at *1 (Tex. App.-Dallas Mar. 30, 2018, pet. ref'd). Garcia did not subsequently seek state habeas relief.

         On April 2, 2019, Garcia filed in this Court a Notice of Appeal and an Application for Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under Code of Criminal Procedure, Article 11.07. Doc. 3. Because it was unclear whether he intended to file his pleading in federal court or state court, the Court issued a Notice of Deficiency and Order requiring him to file a federal habeas petition if he intended to proceed in federal court. Doc. 5. On April 19, 2019, Garcia responded that he planned to file his petition in state court, Doc. 7 at 1, and the Clerk of the Court subsequently returned his initial Application so that he could file it in state court, Doc. 7 at 2. However, on April 29, 2019, Garcia instead filed on the federal form an Amended Petition for Writ of Habeas Corpus by a Person in State Custody. Doc. 8.

         Having now reviewed the online records and all of the applicable pleadings and law, the Court concludes that Garcia's Amended Petition is unexhausted and should be dismissed without prejudice.[2]

         II. ANALYSIS

         A state prisoner must exhaust all available state-court remedies before a federal court will consider the merits of his habeas claims. See28 U.S.C. § 2254(b) and (c); Rhines v. Weber, 544 U.S. 269, 274 (2005). The exhaustion requirement is designed to “protect the state court's role in the enforcement of federal law and prevent the disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982). Exhaustion of state-court remedies “is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.” Morris v. Dretke, 379 F.3d 199, 204 (5th Cir. 2004) (quoting Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999)). A Texas prisoner may satisfy that requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in a petition for discretionary review or 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).

         Garcia has not satisfied the exhaustion requirement. A review of his Amended Petition and a search of the state courts' docket sheets (available online) confirms that he did not file a state habeas application challenging his underlying conviction. Doc. 8 at 4.[3] While Garcia acknowledges mailing his state application on March 26 and again on April 22, 2019, no such application has been filed, much less considered. Doc. 8 at 4, 11. Therefore, the Texas Court of Criminal Appeals has not had an opportunity to consider Garcia's claims and, consequently, they remain unexhausted.

         III. CONCLUSION

         For the foregoing reasons, the amended petition for writ of habeas corpus should be DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies. See28 U.S.C. § 2254(b) and (c).[4]

         SO RECOMMENDED.

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