United States District Court, N.D. Texas, Dallas Division
JAMES CARL THOMPSON, JR. (TDCJ No. 1526314), Petitioner,
LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
James Carl Thompson, Jr., a Texas inmate, convicted in Ellis
County of sexual assault of a child and credit/debit card
abuse, filed a pro se application for writ of habeas
corpus challenging the revocation of his parole. See
Dkt. No. 1. After the transfer of his action to this
district, see Dkt. No. 4, it was referred to the
undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and a standing order
of reference from Senior United States District Judge A. Joe
Fish. And, for the reasons explained below, the undersigned
enters these findings of fact, conclusions of law, and
recommendation that the Court dismiss the habeas application
under Rule 4 of the Rules Governing Section 2254 Cases
without prejudice to Thompson's right to fully exhaust
his state court remedies.
Standards and Analysis
petitioner must fully exhaust state court remedies before
seeking federal habeas relief. See 28 U.S.C. §
entails submitting the factual and legal basis of any claim
to the highest available state court for review in a
procedurally correct manner. See Satterwhite v.
Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989); see
also Nickleson v. Stephens, 803 F.3d 748, 753 (5th Cir.
2015) (“The exhaustion doctrine demands more than
allusions in state court to facts or legal issues that might
be comprehended within a later federal habeas petition. The
exhaustion doctrine is based on comity between state and
federal courts, respect for the integrity of state court
procedures, and ‘a desire to protect the state
courts' role in the enforcement of federal
law.'” (quoting Castille v. Peoples, 489
U.S. 346, 349 (1989) (in turn quoting Rose v. Lundy,
455 U.S. 509, 518 (1982)))). In Texas, a prisoner must
present his claims to the CCA in a petition for discretionary
review or an application for state post-conviction relief.
See Bautista v. McCotter, 793 F.2d 109, 110 (5th
requirement applies “to habeas petitioners challenging
parole revocations.” Dorsey v. Stephens, Civ.
A. No. H-14-03138, 2014 WL 5821955, at *2 (S.D. Tex. Nov. 10,
2014) (citing Alexander v. Johnson, 163 F.3d 906,
908-09 (5th Cir. 1998)); see, e.g., Buchanan v.
Davis, No. 3:15-cv-920-D-BN, 2016 WL 7429465 (N.D. Tex.
Nov. 14, 2016), rec. adopted, 2016 WL 7426144 (N.D.
Tex. Dec. 23, 2016). And “[s]uch challenges are
routinely presented in state habeas applications.”
Dorsey, 2014 WL 5821955, at *2 (citing Campos v.
Johnson, 958 F.Supp. 1180, 1186 (W.D. Tex. 1997)
(citing, in turn, Ex parte Nelson, 815 S.W.2d 737
(Tex. Crim. App.1991))).
Rule 4 of the Rules Governing Section 2254 Cases, a district
court may summarily dismiss a 28 U.S.C. § 2254 habeas
application “if it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner
is not entitled to relief in the district court.”
This rule differentiates habeas cases from other civil cases
with respect to sua sponte consideration of
affirmative defenses. The district court has the power under
Rule 4 to examine and dismiss frivolous habeas petitions
prior to any answer or other pleading by the state. This
power is rooted in “the duty of the court to screen out
frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary
Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999)
(quoting 28 U.S.C. foll. § 2254 Rule 4 Advisory
Committee Notes); see Rodriguez v. Dretke, No.
5:04-cv-28-C, 2004 WL 1119704, at *1 (N.D. Tex. May 17, 2004)
(applying Rule 4 prior to the filing of an answer where this
“Court [was] of the opinion that [the petitioner] has
failed to exhaust his state court remedies” (citing
Kiser)); see also Magouirk v. Phillips, 144
F.3d 348, 357 (5th Cir. 1998) (“[T]here is no doubt
that a federal court may raise sua sponte a
petitioner's failure to exhaust state law remedies and
apply that doctrine to bar federal litigation of
petitioner's claims until exhaustion is complete.”
(citations omitted)); cf. Dispensa v. Lynaugh, 847
F.2d 211, 217 (5th Cir. 1988) (“This requirement, that
a petitioner who seeks federal redress must first seek relief
in state courts and thus exhaust his state remedies, is not a
jurisdictional prerequisite, but a prudential policy based on
concerns for federalism.” (citations omitted)).
there is no record that Thompson has afforded the state
courts - particularly, the CCA, as the applicable highest
state court - the first opportunity to address the substance
of the parole-revocation claims he now intends to raise in
this Court, see Dkt. No. 1 at 3-5, he has failed to
exhaust state-court remedies in a procedurally-correct
manner, and his Section 2254 petition should be dismissed
without prejudice under Rule 4, see, e.g., Sam v.
Louisiana, 409 Fed.Appx. 758, 763 (5th Cir. 2011) (per
curiam) (“A federal district court may not adjudicate a
habeas petition unless all claims in the petition are
exhausted.” (citing Rhines v. Weber, 544 U.S.
269, 274 (2005))).
and Direction to the Clerk of Court
Rule 4 of the Rules Governing Section 2254 Cases, the Court
should dismiss the 28 U.S.C. § 2254 habeas application
without prejudice to Petitioner James Carl Thompson,
Jr.'s right to fully and properly exhaust state court
remedies and serve a copy of any order accepting this
recommendation on the Texas Attorney General.
Clerk of Court is DIRECTED to serve electronically a copy of
this recommendation and the construed habeas petition on the
Texas Attorney General, directed to the attention of Edward
L. Marshall, Chief, Criminal Appeals Division, Texas Attorney
General's Office, Austin, Texas. See Rules
Governing Section 2254 Cases in the United States District
Courts, Rule 4.
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 14 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 ...