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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANTHONY PAUL ALLISON, §

§

Petitioner, §

§

v. § Civil Action No. 3:03-cv-2441-R

§

DOUGLAS DRETKE, Director, § 

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

The United States Magistrate Judge assigned to this case filed Findings, Conclusions and a

Recommendation (“FC&R”) on October 19, 2005. Respondent, Douglas Dretke, filed objections

to the Findings, Conclusions and Recommendation on November 1, 2005 to preserve his rights on

appeal. Respondent alleges that the Magistrate Judge failed to determine that Petitioner’s

sufficiency-of-the-evidence claim is procedurally barred. See Resp’t Obj’n at 1. For the reasons

explained below, the Court adopts the Magistrate Judge’s decision with the additional findings

requested by Respondent Dretke.

I. RESPONDENT’S OBJECTIONS

The Court now reviews the Findings, Conclusion, and Recommendation in light of

Respondent’s objections. The Magistrate Judge found that petitioner did not seek discretionary

review of his conviction to the Court of Criminal Appeals. See FC&R at 1. Later, in a section

entitled “Exhaustion and Procedural Default,” the FC&R state the following: 

Petitioner did not properly present to the state’s highest court either his claim that

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

FILED

November 14, 2005

CLERK, U.S. DISTRICT COURT

 

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trial counsel was ineffective for failing to advise him of his appellate rights, or his

claim that the court changed venue improperly. Thus, Petitioner seeks federal habeas

corpus relief based on factual allegations and legal theories that were never presented

to the highest state court. His failure renders these claims unexhausted.

See FC&R at 5 (citations omitted). The only claim that is not mentioned in that discussion is

Petitioner’s sufficiency-of-the-evidence claim. Since the FC&R recognizes that Petitioner never

filed a petition for discretionary review on any of his claims, the Court believes that the omission

of that claim from the excerpt above was inadvertent. Nevertheless, Respondent’s objection is welltaken in the interest of preserving his rights on appeal. 

II. PROCEDURAL DEFAULT

Petitioner’s sufficiency-of-the-evidence claim is now procedurally barred on federal

collateral review. “Applicants seeking federal habeas relief under § 2254 must exhaust all claims

in state court prior to requesting federal collateral relief.” Soffar v. Dretke, 368 F.3d 441, 465 (5th

Cir.), amended in part on reh’g, 391 F.3d 703 (5th Cir. 2004) (en banc). “The exhaustion

requirement is satisfied when the substance of the federal habeas claim has been fairly presented to

the highest state court.” Soffar, 368 F.3d at 465 (citing Duncan v. Henry, 513 U.S. 364, 366 (1995)

and Fisher v. Texas, 169 F.3d 295, 302 (5th Cir.1999)). Petitioner failed to petition for discretionary

review on his sufficiency-of-the-evidence claim to the Texas Court of Criminal Appeals and, more

significantly, failed to raise that claim in his first petition for state collateral relief. Under Texas law,

the abuse-of-the-writ doctrine prevents an applicant for a successive habeas petition from raising

grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879

S.W.2d 889, 891 n.1 (Tex. Crim. App. 1994) (en banc). The only exception is for good cause

shown. Id. 

The Fifth Circuit has recognized that abuse-of-the-writ doctrine is an adequate state

 

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procedural bar for purposes of federal habeas review under 28 U.S.C. §2254. Emery v. Johnson, 139

F.3d 191, 195 (5th Cir. 1997). Since Petitioner’s sufficiency-of-the-evidence claim was known, or

should have been known to him before he filed his first application for state habeas corpus relief,

he procedurally defaulted that claim in state court. See, e.g., Robison v. Johnson, 151 F.3d 256, 262-

63 (5th Cir. 1998).

In order for this Court to excuse his state procedural default under §2254, Petitioner must

show either (a) cause for the default and actual prejudice or (b) that the Court’s failure to consider

the claim will result in a miscarriage of justice – i.e., that the petitioner is actually innocent of the

crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750

(1991); Barrientes v. Johnson, 221 F.3d 741, 758 (5th Cir. 2000). Petitioner has shown neither

cause for the default nor that a miscarriage of justice would result if the Court failed to consider that

claim. 

III. FINAL ORDER

After reviewing the Magistrate Judge’s Findings, Conclusions, and Recommendation

pursuant to 28 U.S.C. §636(b), the Court concludes that they are correct and are hereby ADOPTED

as the findings of this Court. In addition, the Court also finds that Petitioner has procedurally

defaulted his sufficiency-of-the-evidence claim and has shown neither cause for the default nor that

a miscarriage of justice would result if the Court failed to consider that claim. Accordingly,

Petitioner’s writ of habeas corpus will be dismissed by separate order of the Court. 

 

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IT IS SO ORDERED ___________________________________

HON. JERRY BUCHMEYER

ENTERED: November 14, 2005 UNITED STATES DISTRICT COURT

 NORTHERN DISTRICT OF TEXAS

 

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