IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BENJAMIN DAVIS, §

#1734875, §

PETITIONER, §

§

V. § CIVIL CASE NO. 3:22-CV-569-X-BK

§

DIRECTOR, TDCJ-CID, §

RESPONDENT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case was referred to the United 

States magistrate judge for management, including the issuance of findings and a recommended 

disposition where appropriate. As detailed here, Plaintiff’s pleading, construed petition for writ 

of habeas corpus under 28 U.S.C. § 2254, should be DISMISSED WITHOUT PREJUDICE as 

unexhausted.1

I. BACKGROUND

On March 10, 2022, Petitioner Benjamin Davis, a state prisoner, filed a Step 1 Offender 

Grievance in this Court (1) referencing art. 11.07, (2) seeking “concurrent time” and 

“exoneration,” and (3) enclosing a copy of a letter from the Supreme of Court of Texas advising 

him that it did not have copies of the March 8, 2018 document he requested. Doc. 3 at 2-3. 

The Clerk of the Court docketed the pleading as a habeas corpus petition. Because Davis’ pro se 

pleading was largely unintelligible, the Court issued a deficiency order requiring Davis to file a 

1

See Rule 4(b) of the RULES GOVERNING SECTION 2254 PROCEEDINGS (“If it plainly appears 

from the petition and any attached exhibits that the petitioner is not entitled to relief in the 

district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.”). 

Case 3:22-cv-00569-X-BK Document 6 Filed 04/14/22 Page 1 of 5 PageID 11
2

petition on the court form and pay the filing fee or file an application to proceed in forma 

pauperis if he sought to proceed with a habeas corpus petition. Doc. 4. In response, Davis filed

an similarly unintelligible “notice,” referencing two prior habeas corpus petitions filed in this 

Court and enclosing an inmate statement showing that he had $0.73 in his inmate account as of 

January 31, 2022. Doc. 5. 

The foregoing notwithstanding, a review of online state records reflects that Davis was 

convicted of two counts of aggravated robbery with deadly weapon and sentenced to 40 years’ 

imprisonment. See State v. Davis, Nos. F1059055-Y & F1059056-Y (Crim. Dist. Ct. No. 7, 

Dallas Cty., Tex., Aug. 12, 2011), aff’d, Nos. 05-11-01182-CR & 05-11-01183-CR, 2013 WL 

1819990 (Tex. App. – Dallas Apr. 30, 2013, no pet.) Davis filed neither a petition for 

discretionary review nor a state habeas application. See Davis v. Davis, No. 3:19-CV-03052-NBN, 2020 WL 806952 (N.D. Tex. Jan. 8, 2020), R. & R. adopted, 2020 WL 774390 (N.D. Tex. 

Feb. 18, 2020) (finding Davis’ earlier § 2254 petition unexhausted); Davis v. Director, No. 3:20-

CV-1776-N-BK, 2020 WL 6386491 (N.D. Tex. Aug. 25, 2020), R. & R. adopted, 2020 WL 

6382887, at *1 (N.D. Tex. Oct. 30, 2020) (same), appeal dismissed sub nom., Davis v. Lumpkin, 

2021 WL 2106441 (5th Cir. Mar. 11, 2021). 

Thus, the Court concludes that Davis’ construed habeas petition is unexhausted and

should be dismissed without prejudice.2 

2 Although Davis did not file a proper motion to proceed in forma pauperis with certificate of 

inmate trust account, it is more efficient to dismiss the petition than to require compliance with 

this Court’s filing requirements. 

Case 3:22-cv-00569-X-BK Document 6 Filed 04/14/22 Page 2 of 5 PageID 12
3

II. ANALYSIS

A state prisoner must exhaust all available state-court remedies before a federal court will 

consider the merits of his habeas claims. See 28 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). 

As stated supra, a review of Davis’ pleading, construed here as a § 2254 petition, and a 

search of the applicable state court online docket sheets confirm that Davis did not file a petition 

for discretionary review or a state habeas application challenging either of his convictions. Thus, 

the Texas Court of Criminal Appeals has not had an opportunity to consider Davis’ claims and, 

consequently, they remain unexhausted.

3

 

3 The Dallas County and Texas Court of Criminal Appeals docket sheets are available 

respectively at: https://obpublicaccess.dallascounty.org/PublicAccessEP1/CriminalCourts/ 

and http://search.txcourts.gov/CaseSearch.aspx?coa=coscca&s=c (last accessed April 4, 2022).

Case 3:22-cv-00569-X-BK Document 6 Filed 04/14/22 Page 3 of 5 PageID 13
4

III. CONCLUSION

For the foregoing reasons, Davis’ petition for writ of habeas corpus should be 

DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies. See 28 

U.S.C. § 2254(b) and (c); Rule 4(b) of the RULES GOVERNING SECTION 2254 PROCEEDINGS.

4

SO RECOMMENDED on April 14, 2022.

4 Davis is cautioned that the 1996 amendments to the habeas corpus statute impose a one year 

statute of limitations for filing habeas corpus petitions in federal court, see 28 U.S.C. § 2254(d), 

and that this provision is applicable to this petition as well as to any other petition that he may 

file in this Court. 

Case 3:22-cv-00569-X-BK Document 6 Filed 04/14/22 Page 4 of 5 PageID 14
5

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report 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). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation 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 Services Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time 

to file objections to 14 days). 

Case 3:22-cv-00569-X-BK Document 6 Filed 04/14/22 Page 5 of 5 PageID 15