* District Judge of the Western District of Louisiana, sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20758

GARY DWAINE SPIER

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court for the

Southern District of Texas, Houston Division

USDC No. 4:04-CV-2274

Before DAVIS and SOUTHWICK, Circuit Judges, and DRELL, District Judge.*

PER CURIAM:**

Petitioner-Appellant Gary Dwaine Spier (“Spier”) appeals from the district

court’s dismissal without prejudice of his petition for a writ of habeas corpus

based on Spier’s failure to exhaust state remedies. Spier challenges that

determination. For the reasons set forth below, we affirm. 

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2008

Charles R. Fulbruge III

Clerk
No. 06-11324

1 Deferred adjudication is a form of community supervision, or probation, authorized

by TEX. CODE CRIM. PROC. ANN. art. 42.12 (Vernon 2007). See Rodriguez v. State, 939 S.W.2d

211, 220-21 (Tex. App. 1997).

2

I.

On January 22, 2002, Gary Dwaine Spier was given deferred adjudication1

of six years by the 9th District Court of Waller County, Texas after entering a

plea of nolo contendere to a felony charge of sexual assault of a child. On

December 5, 2002, the state district court revoked Spier’s deferred adjudication

after finding that he had violated its terms. Consequently, the court adjudicated

his guilt and sentenced him to fifteen years imprisonment. Spier did not appeal

from either of these proceedings.

Spier filed a state application for a writ of habeas corpus on May 8, 2003

in the state district court. The clerk of the district court erroneously forwarded

the application to an intermediate appellate court, which dismissed it for lack

of jurisdiction on September 11, 2003. The state district court received a copy

ofthis dismissal on September 19, 2003. Realizing its error, it forwarded Spier’s

state habeas application to the proper court, the Texas Court of Criminal

Appeals, in late October 2003 and notified Spier of the error.

Meanwhile, Spier had submitted a “Motion to Retract” his state habeas

petition in the state district court on September 18, 2003. The court properly

forwarded that motion to the Texas Court of Criminal Appeals, which evidently

received it on September 23, 2003, before it received Spier’s state habeas

petition. On November 12, 2003, the Texas Court of Criminal Appeals denied

the state habeas petition without written order. However, the court

reconsidered the matter sua sponte, and on January 21, 2004 it dismissed Spier’s

state habeas application without a written opinion.

Rather than refile a state habeas application, Spier filed a federal petition

for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District
No. 06-11324

2 Current respondent-appellee Nathaniel Quarterman stands in essentially the same

position as former respondent Dretke.

3

Court for the Southern District of Texas on June 15, 2004. On January 31, 2005,

respondent Doug Dretke, Director oftheTexas Department of Criminal Justice,2

filed a motion for summary judgment arguing primarily that the federal habeas

petition was time-barred and also asserting (and reserving the right to brief the

argument) that Spier had failed to exhaust his state court remedies. On July 5,

2005, the district court granted summary judgment in favor of Dretke on the

ground that Spier had failed to exhaust his state court remedies, dismissed

Spier’s federal habeas petition without prejudice, and denied Spier a certificate

of appealability.

Spier sought a certificate appealability from this Court. We found that,

under Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), Spier had demonstrated

that jurists of reason would debate the correctness of the district court’s

conclusion on the exhaustion issue. Accordingly, we granted the certificate of

appealability on the exhaustion issue and additionally directed the parties to

brief the issue of whether Spier’s federal habeas petition under 28 U.S.C. § 2254

is time-barred.

II.

We review a district court’s decision to dismiss without prejudice a federal

habeas petition for abuse of discretion. Horsley v. Johnson, 197 F.3d 134, 136

(5th Cir. 1999) (citing Granberry v. Greer, 481 U.S. 129, 131 (1987)). Here,

Spier’s federal habeas petition arises under 28 U.S.C. § 2254, which provides, in

relevant part:

(b)(1) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted unless it appears that–
No. 06-11324

4

(A) the applicant has exhausted the remedies available

in the courts of the State; or . . . .

(c) An applicant shall not be deemed to have exhausted the

remedies available in the courts of the State, within the meaning of

this section, if he has the right under the law of the State to raise,

by any available procedure, the question presented.

Id. This Court has explained:

A fundamental prerequisite to federal habeas relief under § 2254 is

the exhaustion of all claims in state court prior to requesting federal

collateral relief. A federal habeas petition should be dismissed if

state remedies have not been exhausted as to all of the federal court

claims.

The exhaustion requirement is satisfied when the substance of the

federal habeas claim has been fairly presented to the highest state

court. In Texas, the highest state court for criminal matters is the

Texas Court of Criminal Appeals. A federal court claim must be the

“substantial equivalent” of one presented to the state courts if it is

to satisfy the “fairly presented” requirement. The habeas applicant

need not spell out each syllable of the claim before the state court to

satisfy the exhaustion requirement. This requirement is not

satisfied if the petitioner presents new legal theories or new factual

claims in his federal application.

Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (footnotes omitted).

In the instant case, confusion arises out of the seemingly complicated

procedural history of Spier’s state application for habeas relief. However, the

ultimate issue actually is fairly simple: What effect should the denial and

subsequent dismissal of Spier’s state application by the Texas Court of Criminal

Appeals have on the exhaustion requirement set out by 28 U.S.C. §

2254(b)(1)(A)?

TheTexas Court of Criminal Appeals has explained the difference between

a denial and a dismissal as follows:“In our writjurisprudence, a ‘denial’ signifies

that we addressed and rejected the merits of a particular claim while a
No. 06-11324

3 The dismissal simply reads:

APPLICATION FOR 11.07 WRIT OF HABEAS CORPUS 

RECONSIDERED ON COURT’S OWN MOTION

ACTION TAKEN

DISMISSED.

R. at 161.

5

‘dismissal’ means that we declined to consider the claim for reasons unrelated

to the claim's merits.” Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App.

1997). However,

[e]xhaustion normally “requires only that the federal claim have

been fairly presented to the highest court of the State, either on

direct review of the conviction or in a post-conviction attack.” Thus,

if the substance of the petitioner’s claims is brought to the state

court’s attention, the fact that the court does not explicitly pass on

the claims is irrelevant to the question of exhaustion, because the

opportunity to consider them has been presented.

Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982) (citations omitted).

In the instant case, the Texas Court of Criminal Appeals initially denied

Spier’s state habeas application and then, on reconsideration, dismissed the

application without a written opinion.3 Although, under Texas jurisprudence,

the dismissal probably indicates a disposition for reasons unrelated to the

merits, Ex parte Torres, 943 S.W.2d at 472, the dismissal could still constitute

exhaustion under 28 U.S.C. § 2254(b)(1)(A), simply because the petitioner’s claim

had been presented to the highest court ofthe State. See Escobedo v. Estelle, 650

F.2d 70, 75 (5th Cir. 1981) (cited in Carter, 677 F.2d at 443) (holding that the

petitioner had satisfied § 2254's exhaustion requirement where he had “squarely

raised precisely the grounds upon which he relies in this action” but the Texas

Court of Criminal Appeals had dismissed the petition without a written opinion).

Yet, even assuming that the dismissal could satisfy the exhaustion

requirement, 28 U.S.C. § 2254(c) precludes a habeas petitioner’s fulfilling the
No. 06-11324

6

exhaustion requirement “if he has the right under the law of the State to raise,

by any available procedure, the question presented.” Id. In this case, because

his first state habeas application was dismissed for reasons apparently unrelated

to the merits, Spier should be able to file a new one. See Ex parte Thomas, 953

S.W.2d 286 (Tex. Crim. App. 1997) (en banc) (holding thatthe applicant’s second

state habeas application was not barred where the Texas Court of Criminal

Appeals had disposed ofthe first application “for reasons unrelated to the merits

and never addressed the merits of the grounds raised therein, [and thus] there

was no final disposition of applicant's initial writ application”). Texas imposes

no time limits on applications for habeas relief, provided the time elapsed is not

so long as to trigger application of the doctrine of laches. See Ex parte Carrio,

992 S.W.2d 486, 488-90 (Tex. Crim. App. 1999) (remanding to the district court

for a determination of whether a fourteen-year delay violated the doctrine of

laches). Accordingly, under 28 U.S.C. § 2254(c), Spier is deemed not to have

satisfied the exhaustion requirement, and the district court did not abuse its

discretion by so ruling.

Because we hold that the district court did not abuse its discretion in

dismissing without prejudice Spier’s federal habeas petition for failure to

exhaust his state court remedies, we decline to address the issue of whether his

federal habeas petition is time-barred.

III.

For the foregoing reasons the district court’s dismissal, without prejudice,

of Spier’s federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 is

affirmed.

AFFIRMED.