UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-20608

_____________________

DARREL EUGENE ALEXANDER,

Petitioner-Appellee,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ December 21, 1998

Before WISDOM, DAVIS, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this state habeas action, in which the district court

granted relief to Darrel Eugene Alexander, a Texas prisoner, on the

grounds that his parole revocation was based on insufficient

evidence and that the statute which served as the basis for that

revocation had been declared unconstitutional by the Texas courts

(the latter ground having been raised sua sponte by the court),

primarily at issue is whether such relief could be granted, in that

Alexander has not exhausted state remedies as to the state

statutory issue. We V ACATE and REMAND with instructions to dismiss

the petition without prejudice

.* The petition was timely filed, because the one-year

period of limitation was tolled during the pendency of Alexander’s

state habeas application. S ee 28 U.S.C. § 2244(d); Fields v.

- 2 - I.

Alexander, who was convicted in Texas state court in 1986 for

manufacturing a controlled substance and sent enced to 65 years

imprisonment, was paroled in 1991. As a condition of parole, he

was required to “[o]bey all municipal, county, state and federal

laws”.

In February 1995, Alexander’s former common-law wife reported

to the police that Alexander was stalking her. Later that month,

she executed an affidavit accusing Alexander of stalking and

harassment. But, the next month, she executed another affidavit to

“clarify” her previous affidavit, stating that she had no personal

knowledge of any threats and that Alexander did not “intend to

harass, annoy, alarm, abuse, torment or embarrass anyone”.

And, she te stified at Alexander’s parole revocation hearing

that he did not threate n, stalk, or harass her. In May 1995,

Alexander’s parole was revoked for stalking/harassment.

Alexander filed an application in March 1997 for state habeas

relief, claiming that there was insufficient evidence for the

revocation. The application was denied without written order that

May.

Alexander filed a petition for federal habeas relief in June

1997, again claiming insufficient evidence for th e revocation. *Johnson , 159 F.3d 914 (5th Cir. 1998)

.

- 3 - The magistrate judge recommended that relief be granted not only on

the sufficiency ground, but also, sua sponte, on the ground that

the Texas courts had held unconstituti onal the stalking statute

under which Alexander’s parole had been revoked.

Notwithstanding the State’s objections, including that the

state statutory issue had not been exhausted in state court, the

district court adopted the magistrate judge’s recommendation. It

ordered that Alexander’s revocation be vacate d and that he be

reinstated on parole.

The di strict court denied the State’s post-judgment motions

for relief, granted Alexander’s motion for a release order, and

denied the State’s motion to stay the judgment pending appeal.

This court granted the State’s motion for a stay and expedited the

appeal.

II.

The State contends that there was sufficient evidence to

revoke Alexander’s parole; alternatively, it contends that, because

the State has not waived exhaustion, the district court lacked

authority to grant relief sua sponte on the unexhausted state

statutory issue. Alexander, p ro se

, does not dispute that the

state statutory basis for his habeas relief has not been considered

by the state courts; instead, he counters that the state process is

ineffective and that the district court should be able to grant- 4 -

relief sua sponte on an unexhausted claim if proper circumstances

exist.

In Bird v. Collins

, 924 F.2d 67 (5th Cir.), cert. denied

, 501

U.S. 1213 (1991), the district court, sua sponte , raised and then

rejected a claim that had never been asserted by the habeas

petitioner and which, therefore, had not be en exhausted in state

court. Our court did not decide whether the district court had the

authority to raise the claim sua sponte

, but stated that the claim

was not properly before our court, vacated the district court’s

ruling regarding that claim, and affirmed the judgment as modified.

Id . at 68.

We need not decide whether, in this case, the district court

could sua sponte raise the state statutory issue. We assume,

arguendo

, that it could. S ee id

. But here, unlike in B ird

, the

district court granted relief on an unexhausted claim that had

never been asserted by Alexander.

In addition, Bird was decided prior to the enactment of the

Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §§

2241-55 (Supp. 1998), which is applicable to Alexander, because he

filed for federal habeas relief after AEDPA’s 24 April 1996

effective date. The Act provides in pertinent part:

(b)(1) An application for a writ of

habeas corpus on behalf of a person in custody

pursuant to the ju d gment of a State court

shall not be granted unless it appears that—- 5 - (A) the applicant has

exhausted the remedies available in

the courts of the State; or

(B)(i) there is an absence

of available State corrective

process; or

(ii) circumstances exist that

re nder such process ineffective to

protect the rights of the applicant.

(2) An application for a writ of habeas

corpus may be denied on the merits,

notwithstanding the failure of the applicant

to exhaust the remedies available in the

courts of the State.

(3) A State shall not be deemed to have

waived the exhaustion requirement or be

estopped from reliance upon the requirement

unless the State, through counsel, expressly

waives the requirement

.

28 U.S.C. § 2254(b) (emphasis added).

Although AEDPA authorizes a district court to deny relief on

an unexhaus ted claim, s ee Jones v. Jones

,

___ F.3d

___, 1998 WL

__________ (5th Cir. Dec. 16, 1998); Nobles v. Johnson

, 127 F.3d

409, 423 (5th Cir. 1997), c ert. denied

,

___ U.S.

___, 118 S. Ct.

1845 (1998), it does not authorize a district court to grant relief

on an unexhausted clai m, “unless the State, through counsel,

expressly waives the requirement”. 28 U.S.C. § 2254(b)(3). The

State has not done so in th is case. Accordingly, the district

c ourt lacked authority to g rant relief on the state statutory

ground.- 6 -

A habeas petition containing both exhausted and u nexhausted

claims is a “mixed” petition which should be dismissed without

prejudice. R ose v. Lundy

, 455 U.S. 509, 510 (1982); see also

Whitehead v. Johnson

, 157 F.3d 384, 38 7 & n.6 (5th Cir. 1998).

Although Alexander did not assert the unconstitutionali ty of the

Texas stalking statute as a ground for habeas relief, his federal

habeas petition nevertheless be came a “mixed” petition when the

district court

, sua sponte , raised, and granted relief on, that

issue. And, as stated, Alexander urges that basis on appeal in

support of affirmance of the judgment. Accordingly, the petition

must be dismissed without prejudice

, unless “there is an absence of

available State corrective process” or “c ircumstances exist that

render such process ineffective to protect the rights of the

applicant”. 28 U.S.C. § 2254(b)(1)(B).

Alexander maintains that exhaustion would be futile and that

the current state process is ineffective. We disagree. Alexander

has not requested habeas relief from Texas courts on the ground

that the stalking statute which apparently served as the basis for

his parole revocation is unconstitutional. Nor has he demonstrated

that there is no available corrective process in the state courts

or that there are circumstances that render such process

ineffective.

Needless to say, the basis fo r the exhaustion doctrine

codified in AEDPA is comity. S ee Rose

, 455 U.S. at 516. As- 7 -

reflected by the above-discussed AEDPA provisions, the interests of

comity are served best in this instance by Texas courts having an

opportunity to consider whether Alexander’s parole was revoked on

the basis of an unconstitutional state statute.

Along this line, and in the event that Alexander is

unsuccessful in obtaining relief in Texas courts, the instant

federal court dismissal of his claims without prejudice wil l not

bar him from renewing his claim for federal habeas relief, should

the State assert, if and when he does so, that his renewed petition

is successive. S ee In re Gasery

, 116 F.3d 1051, 1052 (5th Cir.

1997) (refiling of federal habeas petition following dismissal of

original petition wit hout prejudice for failure to exhaust state

remedies is continuation of first collateral attack, and thus not

a “successive petition” within the meaning of 28 U.S.C. § 2244(b));

see also Stewart v. Martinez-Villareal

,

___ U.S.

___, 118 S. Ct.

1618, 1622 (1998) (noting that Court has never “suggested that a

prisoner whose habeas petition was dismissed for failure to exhaust

state remedies, and who then did exhaust those remedies and

returned to federal court, was by such action filing a successive

petition”).

III.

For the foregoing reasons, the judgment is VACATED and this

case is REMANDED to the district court with instructions to dismiss

without prejudice.

VACATED and REMANDED