United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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).
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. 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
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).