IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CHRISTOPHER ROLAND FENNER, § 

TDCJ No. 2207245, § 

 § 

Petitioner, § 

 § 

V. § No. 3:22-cv-1397-K-BN 

§ 

DIRECTOR, TDCJ-CID, § 

§ 

Respondent. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Petitioner Christopher Roland Fenner, a Texas prisoner, filed a pro se

application for a writ of habeas corpus under 28 U.S.C. § 2254 collaterally attacking 

a 2018 Johnson County conviction for failing to comply with sex offender registration 

requirements. See Dkt. No. 3 at 1; State v. Fenner, DC-F201800177 (18th Dist. Ct., 

Johnson Cnty., Tex.). 

United States District Judge Ed Kinkeade referred the petition to the 

undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b) and a standing order of reference. 

Because Fenner has failed to show that, before resorting to Section 2254 relief, 

he fully and properly exhausted his state remedies as to the criminal judgment he 

now challenges, the undersigned enters these findings of fact, conclusions of law, and 

recommendation that the Court should dismiss the habeas application under Rule 4 

of the Rules Governing Section 2254 Cases (Habeas Rule 4) without prejudice to 

Fenner’s right to fully and properly exhaust his state remedies. 

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“[S]tate courts play the leading role in assessing challenges to state sentences 

based on federal law.” Shinn v. Kayer, 141 S. Ct. 517, 526 (2020) (per curiam). A state 

petitioner must therefore fully exhaust state remedies before seeking federal habeas 

relief. See 28 U.S.C. § 2254(b)(1)(A); Loynachan v. Davis, 766 F. App’x 156, 159 (5th 

Cir. 2019) (“A federal court may not grant habeas relief unless the petitioner ‘has 

exhausted the remedies available in the courts of the State.’” (quoting 28 U.S.C. § 

2254(b)(1)(A))). 

This 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).1

Texas prisoners must present their claims to the Texas Court of Criminal 

Appeals (the CCA) in a petition for discretionary review (PDR) or an application for 

state post-conviction relief. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 

1986). “A petitioner need merely press a claim through one of these avenues to 

1 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) (quoting, in turn, Rose v. Lundy, 455 U.S. 509, 518 (1982)))); Loynachan, 766 

F. App’x at 159 (“To determine whether a § 2254 petitioner has exhausted a claim, 

his federal claim should be compared with the claim he raised in state court ‘It is 

not enough that all the facts necessary to support the federal claim were before the 

state courts or that a somewhat similar state-law claim was made.’ ‘Rather, the 

petitioner must afford the state court a “fair opportunity to apply controlling legal 

principles to the facts bearing upon his constitutional claim.”’ This reflects the fact 

in the habeas system, state courts are provided the first opportunity to assess the 

claim.” (citations omitted)). 

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exhaust that claim. [But, t]o exhaust a claim, it must also be presented in a 

procedural context in which state courts necessarily review the claim on the merits.” 

Loynachan, 766 F. App’x at 159 (citations omitted). 

Under Habeas Rule 4, 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.” 

Id.

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 [Habeas] 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 answer.” 

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 Habeas 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)).2

As set out in his petition, Fenner did not appeal the state conviction he now 

2 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)). 

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challenges under Section 2254. See Dkt. No. 3 at 3. And, while he states that he has 

filed a state habeas petition, he explains that the CCA has yet to rule on that 

application, see id. at 3-4, which is confirmed by records of the CCA available online. 

The CCA has therefore yet to consider – either through a PDR or a state habeas 

application – the substance of the claims that Fenner intends to raise here. He has 

thus failed to exhaust state remedies in a procedurally correct manner. And his 

Section 2254 application should be dismissed without prejudice under Habeas Rule 

4. See, e.g., Sam v. Louisiana, 409 F. App’x 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))). 

Recommendation and Directions to Clerk of Court

The Court should dismiss Petitioner Christopher Roland Fenner’s application 

for a writ of habeas corpus under Rule 4 of the Rules Governing Section 2254 Cases 

without prejudice to his right to fully and properly exhaust state remedies. The Court 

should further direct that the Clerk of Court serve any order accepting or adopting 

this recommendation on the Texas Attorney General. 

The Clerk of Court is DIRECTED to serve electronically a copy of this 

recommendation and the petition, along with any attachments thereto and brief in 

support thereof, on the Texas Attorney General as counsel for Respondent, directed 

to the attention of Edward L. Marshall, Chief, Criminal Appeals Division, Texas 

Attorney General’s Office. See RULE 4, RULES GOVERNING SECTION 2254 CASES IN THE 

UNITED STATES DISTRICT COURTS. 

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A copy 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 findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: July 5, 2022 

_________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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