1

 On August 1, 2003, the Texas Department of Criminal Justice - Institutional Division became the Texas Department

of Criminal Justice - Correctional Institutions Division, and Douglas Dretke became the Director of the renamed division.

The Court thus substitutes him for the named respondent. See Fed. R. Civ. P. 25(d)(1).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RODDY ALLAN SCOTT, ID # 701849, )

Petitioner, )

vs. ) No. 3:05-CV-0758-B

)

DOUGLAS DRETKE,1 Director, )

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate

pursuant to 28 U.S.C. § 2254. 

B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of

Criminal Justice - Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke,

Director of TDCJ-CID.

C. Statement of the Case: On March 9, 1995, petitioner pled guilty to aggravated robbery

and was sentenced to thirty-five years imprisonment. (Pet. Writ of Habeas Corpus (Pet.) at 2.) He

did not appeal that conviction. (Id. ¶¶ 8-9.) Although he filed a state application for writ of habeas

 

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corpus, the Texas Court of Criminal Appeals dismissed the application. (Id. at 7 and attached

pages.) The dismissal of the application was based on petitioner’s failure to comply with TEX.GOV’T

CODE § 501.0081. See Texas Judiciary Online, http://www.cca.courts.state.tx.us/opinions/Event.asp?

EventID=2178797 (accessed May 3, 2005) (showing basis for dismissal). 

On April 18, 2005, the Court received the instant federal petition from petitioner. He

complains that the dismissal of his state habeas petition violates his rights to due process and equal

protection. (See Pet. at 7 and attached pages) He asserts that the State failed to give him sufficient

time credit for time spent in jail prior to trial. (Id.) 

II. EXHAUSTION

A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C.

§ 2254(b). To exhaust in accordance with § 2254, a petitioner must fairly present the factual and

legal basis of any claim to the highest available state court for review prior to raising it in federal

court. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429,

432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas, a 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, 762 F.2d at 432. To exhaust in accordance with § 2254, a petitioner must fairly present

all claims to the state courts prior to raising them in federal court. Deters v. Collins, 985 F.2d 789,

795 (5th Cir. 1993). 

Furthermore, as of January 1, 2000, Texas inmates must generally pursue sentence credit

issues through a dispute-resolution process within the prison system before seeking relief through the

state habeas process. See TEX. GOV’T CODE § 501.0081 (Vernon Supp. 1999). After completion

 

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of the dispute-resolution process or upon being exempted from such completion, the inmate must

also pursue relief through the state habeas process to fully exhaust his state remedies. Id.; Ex parte

Shepherd, 65 S.W.3d 673, 674-75 (Tex. Crim. App. 2002) (Cochran, J., concurring). 

In this case, petitioner presented a state writ to the Texas Court of Criminal Appeals. That

court, however, dismissed the writ for failure of petitioner to comply with TEX. GOV’T CODE §

501.0081. To exhaust state remedies, petitioners must present their claims in a procedurally correct

manner. See Castille v. Peoples, 489 U.S. 346, 351 (1989). When a petitioner has raised a claim in

a procedural context “in which its merits will not be considered,” he has not “fairly presented” the

claim to the state courts and, accordingly, has not satisfied the exhaustion doctrine. Id.; Satterwhite

v. Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989). 

A federal district court may raise the lack of exhaustion sua sponte. Shute v. State, 117 F.3d

233, 237 (5th Cir. 1997). It is well-settled that federal courts can dismiss without prejudice a federal

petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy,

455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity

to hear and consider the claims raised by an applicant before those claims are heard in federal court.

Picard v. Connor, 404 U.S. 270, 275 (1971). 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. 

To the extent the petitioner challenges his sentence credit calculation, the Texas Court of

Criminal Appeals has had no meaningful opportunity to review such claim because petitioner failed

to pursue the administrative remedies accorded by TEX. GOV’T CODE § 501.0081. Petitioner, furthermore, has not presented his claims relating to the dismissal of his previous state petition to the

 

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Texas Court of Criminal Appeals. Accordingly, a ruling from the federal court at this juncture

would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (hold

ing that the exhaustion requirement is “designed to protect the state courts’ role in the enforcement

of federal law and prevent the disruption of state judicial proceedings”). Petitioner is, therefore, not

entitled to habeas corpus relief for failure to exhaust his state remedies.

III. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the

instant habeas corpus petition be DISMISSED without prejudice for failure to exhaust state court

remedies. 

SIGNED this 5th day of May, 2005. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions and recommendation within ten 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. Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en

banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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