HAB54\R&R\OWEN-JM.EXH&NOFEE:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JIMMY MURRELL OWEN, §

§

Petitioner, §

§

v. § 2:05-CV-0124

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

FOR FAILURE TO PAY FILING FEE or,

ALTERNATIVELY, FOR FAILURE TO EXHAUST STATE COURT REMEDIES

Petitioner JIMMY MURRELL OWEN has filed with this Court an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241 et seq. Petitioner has not, however, submitted with his

petition any payment to satisfy the requisite filing fee, nor has he submitted an application to

proceed in forma pauperis with a certified in forma pauperis data sheet from the institution in

which he is confined. Further, petitioner has failed to exhaust his state court remedies prior to filing

in federal court.

I.

PROCEDURAL HISTORY

According to his application, on April 16, 2003, petitioner was convicted by a jury, in the

47th Judicial District of Randall County, Texas, of the felony offense of conspiracy to commit

 

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burglary of a habitation. As a result of this conviction, petitioner was sentenced to twenty (20) years

confinement in the Texas Department of Criminal Justice, Institutional Division. Petitioner avers he

directly appealed his conviction and sentence to the Court of Appeals for the Seventh District of

Texas who, on April 29, 2004, affirmed petitioner’s conviction. Petitioner does not indicate that he

filed a petition for discretionary review with the Texas Court of Criminal Appeals.

Petitioner advises that on April 24, 2005, he mailed a state application for habeas corpus

relief from his conviction to the trial court. Petitioner explains that “because of the late date of

receiving notice of the denial of my appeal, [he] was compelled to submit [his] 11.07 and 2254

within the same month to preserve [his] AEDPA deadline.” Review of the state court on-line

docket sheet confirms petitioner’s state habeas application was filed of record on May 3, 2005.

On May 2, 2005, petitioner filed with this Court, the instant federal petition for a writ of

habeas corpus. Petitioner avers he placed the petition in the prison mailing system on April 27,

2005.

II.

FAILURE TO PAY FILING FEE

Petitioner did not submit with his habeas application any payment to satisfy the requisite

filing fee, nor did he submit an Application to Proceed In Forma Pauperis or a certified in forma

pauperis data sheet from the institution in which he is confined. It is petitioner’s obligation to

ensure that the filing fee is submitted to the Court or that permission to proceed in forma pauperis is

received in lieu of the filing fee. Because petitioner has failed to pay the requisite filing fee in this

case, or obtain permission to proceed without payment of the filing fee, it is the opinion of the

undersigned that petitioner’s case should be DISMISSED.

 

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III.

EXHAUSTION OF STATE COURT REMEDIES

Section 28 U.S.C. § 2254 states, as relevant to this proceeding:

(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— 

(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 render 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) . . .

(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.

28 U.S.C. § 2254 (emphasis added). The exhaustion doctrine set forth in section 2254 requires that

the state courts be given the initial opportunity to address and, if necessary, correct alleged

deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349,

109 S.Ct. 1056, 1059 (1989). The doctrine serves “to protect the state courts’ role in the

enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy,

455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982). 

Under our federal system, the federal and state courts are equally bound to guard and

protect rights secured by the Constitution. Because it would be unseemly in our dual

system of government for a federal district court to upset a state court conviction

without an opportunity to the state courts to correct a constitutional violation, federal

courts apply the doctrine of comity, which teaches that one court should defer action

 

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on causes properly within its jurisdiction until the courts of another sovereignty with

concurrent powers, and already cognizant of the litigation, have had an opportunity

to pass upon the matter. 

Id. (brackets, internal quotation marks, and citations omitted). To have exhausted his state

remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional

claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523

U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional

claim presented to the state courts be supported by the same factual allegations and legal theories

upon which the petitioner bases his federal claims. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct.

509, 512, 30 L.Ed.2d 438 (1971). Further, in order to satisfy the federal exhaustion requirement,

petitioner must fairly present to the highest state court each constitutional claim he wishes to assert

in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub

nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v.

Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982),

cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the

Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a

petitioner’s confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be

presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim.

Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary

review.

Petitioner has filed a state habeas corpus application challenging the same conviction he

now challenges in the instant federal habeas application. The state habeas application is currently

 

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The undersigned further notes that because there is an ongoing state judicial proceeding, an important state interest in

subject matter of the proceeding is implicated, and the state proceedings afford adequate opportunity to raise constitutional

challenges being asserted in this federal court. Therefore, the abstention doctrine allows this Court to decline jurisdiction. See

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (requiring federal courts in many circumstances to refrain

from interfering with state proceedings).

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pending before the state courts.1 The state’s highest court has not yet had an opportunity to review

and determine the merits of petitioner’s application. As the grounds raised in petitioner’s federal

habeas application have not been exhausted, this Court is clearly precluded, by statute, from

granting federal habeas corpus relief in this proceeding. Petitioner has not provided this Court with

any evidence demonstrating an exception to this prohibition. Accordingly, said application is

subject to summary dismissal in order that petitioner may present to, and obtain a ruling by, the

Texas Court of Criminal Appeals on the unexhausted grounds.

With regard to petitioner’s argument that he had to simultaneously file the state and federal

habeas petitions in order to “preserve [his] AEDPA deadline,” the undersigned notes 28 U.S.C. §

2244(d)(2) provides:

The time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall not

be counted toward any period of limitation under this subsection.

III.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States

District Judge that the Petition for Writ of Habeas Corpus filed by petitioner JIMMY MURRELL

OWEN be, in all things, DISMISSED for failure to pay the $5.00 filing fee. Alternatively, it is the

RECOMMENDATION of the United States Magistrate Judge to the United States District Judge

that the Petition for Writ of Habeas Corpus filed by petitioner JIMMY MURRELL OWEN be, in all

things, DISMISSED for failure to exhaust state court remedies.

 

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IV.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner and to counsel of record for respondent by the most efficient means

available.

IT IS SO RECOMMENDED. 

ENTERED this 13th day of May 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the file mark on the first page of this

recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the parties are

allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any objections must be

filed on or before the fourteenth (14th) day after this recommendation is filed. See 28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule

3.1, Local Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

 

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