United States District Court, N.D. Texas, Fort Worth Division
NORMAN L. AGNEW, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
MCBYDE UNITED STATES DISTRICT JUDGE
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Norman L. Agnew, a state
prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ)
against Lorie Davis, Director of TDCJ, respondent. After
having considered the pleadings, state court records, and
relief sought by petitioner, the court has concluded that the
petition should be dismissed without prejudice, in part, on
exhaustion grounds, and denied, in part.
Factual and Procedural History
December 11, 2017, in Tarrant County, Texas, petitioner
pleaded guilty, pursuant to plea agreements, to injury to a
child in No. 1429034D; theft of a firearm in No. 1434386D;
unlawful possession of a firearm in No. 1434387D; and bail
jumping in No. 1475324D. (Pet. 2-3, doc. 3.) He was sentenced
in accordance with the plea agreements to 15 years'
confinement in each case, the sentences to run concurrently.
(Resp't's Preliminary Answer Ex. A, doc. 12-1.)
Petitioner did not appeal his convictions or sentences, but
did file a state habeas-corpus application raising one or
more of the claims presented in this federal petition, which
was denied by the Texas Court of Criminal Appeals without
written order or hearing on the findings of the trial court.
(Action Taken, doc. 27-1.)
grounds for federal habeas relief are construed as follows:
(1) the Texas Board of Pardons and Paroles is using his two
prior 2008 aggravated assault and 1998 arson convictions to
deny his release to mandatory supervision in violation of the
double jeopardy and due process clauses of the Fifth
Amendment and the Ninth Amendment; and
(2) his sentence(s) were wrongfully enhanced in violation of
the holding in Apprendi v. New Jersey, 530 U.S. 466
(Pet. 6, 11-14, doc. 3; Consol. Pet.6-7, doc.
seeks a mandatory release date and requests that his sentence
(s) be overturned. (Pet. 12, 14, doc. 3; Consol. Pet. 7, doc.
asserts that petitioner's claims are wholly unexhausted,
save for his second claim as it pertains to his 15-year
sentence for theft of a firearm in No. 1434386D.
(Resp't's Supp. Answer 6, doc. 29.) A petitioner must
fully exhaust state court remedies before seeking federal
habeas relief. 28 U.S.C. § 2254(b). This entails
submitting the factual and legal basis of any claim to the
highest available state court for review. Carter v.
Estelle, 677 F.2d 427, 443 (5th Cir. 1982). Thus, a
Texas prisoner must present his claims to the Texas Court of
Criminal Appeals, the state's highest criminal court, in
a petition for discretionary review or an application for
writ of habeas corpus. Bautista v. McCotter, 793
F.2d 109, 110 (5th Cir. 1986); Richardson v.
Procunier, 762 F.2d 429, 432 (5th Cir. 1985). The
exhaustion requirement is "not satisfied if the
petitioner presents new legal theories or factual claims in
his federal habeas petition." Anderson v.
Johnson, 338 F.3d 381, 386 (5th Cir. 2003).
reviewed the state court records, the court agrees that
petitioner's claims under ground (1), enumerated above,
raised for the first time in this federal habeas petition are
wholly unexhausted for purposes § 2254(b)(1)(A). The
exhaustion requirement applies to prisoners challenging a
denial of release to mandatory supervision. See Hess v.
Stephens, No. 4:13-CV-093- A, 2013 WL 3204373, at *1
(N.D.Tex. June 24, 2013); Dodson v. Cockrell, No.
4:02-CV-560-Y, 2002 WL 31495992, at *2 (N.D.Tex. Nov. 5,
review of the records also reveals that petitioner's
claim under ground (2) as it relates to petitioner's
15-year sentences in No. 1429034D for injury to child, No.
1434387D for unlawful possession of a firearm, and No.
1475324D for bail jumping raised for the first time in this
federal petition is also wholly unexhausted for purposes
§ 2254(b)(1)(A). Although petitioner filed a state
habeas application raising his claim under Apprendi,
he only challenged his 15-year sentence in No. 1434386D for
theft of a firearm. (SHR 24-25, doc. ...