Findings, Conclusions and Recommendation

of the United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JIMMY DEWAYNE RODRIGUEZ, 1283634, )

Petitioner, )

)

v. ) No. 3:06-CV-290-N

) ECF

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, Correctional ) 

Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge follow:

PROCEDURAL BACKGROUND

This is a habeas corpus proceeding brought under 28 U.S.C. § 2254. Petitioner is in the

custody of the Texas Department of Criminal Justice - Institutional Division.

On January 20, 2005, Petitioner was convicted of possession of a controlled substance. 

State of Texas v. Rodriguez, No. F-04-50374-WQ (204th Dist. Ct., Dallas County, Tex., Jan. 20,

2005). Petitioner was sentenced to fifteen years confinement. On October 18, 2005, the Fifth

District Court of Appeals affirmed Petitioner’s conviction. Rodriguez v. State, No. 05-05-00222-

CR (Tex. App. – Dallas 2005, no pet.). Petitioner did not file a petition for discretionary review. 

He also did not file any state applications for habeas corpus relief. 

 

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EXHAUSTION OF STATE COURT REMEDIES

A petitioner must fully exhaust state remedies before seeking federal habeas relief. See

28 U.S.C. § 2254(b). This entails submitting the factual and legal basis of any claim to the

highest available state court for review. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). A

Texas prisoner must present his claim to the Texas Court of Criminal Appeals in a petition for

discretionary review or an application for writ of habeas corpus. See Bautista v. McCotter, 793

F.2d 109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). A

federal habeas petition that contains unexhausted claims must be dismissed in its entirety. 

Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990); Bautista, 793 F.2d at 110. 

In this case, Petitioner did not file a petition for discretionary review and he did not file

any state applications for writ of habeas corpus. He has therefore not presented his claims to the

Texas Court of Criminal Appeals. 

Although the terms of § 2254(b)(2) provide that an application for a writ of habeas

corpus may be denied on the merits notwithstanding the applicant’s failure to exhaust his state

court remedies, complete exhaustion assists the federal courts in their review because federal

claims that have been fully exhausted in state courts will necessarily be accompanied by a more

complete factual record. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982).

 

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RECOMMENDATION

For the foregoing reasons, the Court recommends that the District Court dismiss the

habeas corpus petition without prejudice for failure to exhaust state court remedies.

Signed this 23rd day of February, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and recommendations

on Petitioner. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings

and recommendations must file and serve written objections within ten (10) days after being

served with a copy. A party filing objections must specifically identify those findings and

recommendations to which objections are being made. The District Court need not consider

frivolous, conclusory or general objections. The failure to file such written objections to these

proposed findings and recommendations shall bar that party from a de novo determination by the

district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file

written objections to proposed findings and recommendations within ten (10) days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted 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)(en

banc).

 

 

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