IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

PHILMORE CLINES, JR. §

VS. § CIVIL ACTION NO. 9:24cv23

DIRECTOR, TDCJ-CID §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Philmore Clines, Jr., an inmate confined within the Texas Department of Criminal Justice,

Correctional Institutions Division, proceeding pro se, filed this petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. This matter was referred to the undersigned magistrate judge pursuant

to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the

Assignment of Duties to the United States Magistrate Judge, for findings of fact, conclusions of law,

and recommendations for the disposition of the case.

Discussion

Petitioner states that he was previously convicted of a criminal offense in Trinity County,

Texas. He was sentenced to 10 years of imprisonment.

A state prisoner must exhaust all remedies available in state court before proceeding in

federal court unless circumstances exist which render the state corrective procedure ineffective to

protect the prisoner’s rights. 28 U.S.C. § 2254. In order to exhaust properly, a state prisoner must

“fairly present” all of his claimsto the appropriate state court. Picard v. Connor, 762 F.2d 429 (5th

Cir. 1985). In Texas, all claims must be presented to and ruled on by the Court of Criminal Appeals. 

Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985). 

In Texas, two avenues are available to a petitioner attempting to fairly present his claim to

the Court of Criminal Appeals. First, a petitioner may directly appeal his conviction by filing a

petition for discretionary review with the Court of Criminal Appeals. Second, a petitioner may file

a post-conviction application for writ of habeas corpus in the state courts.

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Petitioner indicates he has filed neither a petition for discretionary review nor a state

application for writ of habeas corpus. Moreover, the website operated by the Court of Criminal

Appeals does not indicate any case has been filed with that court by an individual named Philmore

Clines, Jr. As a result, petitioner has not presented his claims to the Court of Criminal Appeals and

has not exhausted his state remedies concerning his conviction. This case should therefore be

dismissed for failure to exhaust state remedies. The dismissal will be without prejudice to

petitioner’s ability to file a new petition after exhausting his state remedies.

Recommendation

This petition for writ of habeas corpus should be dismissed without prejudice.

Objections

Objections must be (1) specific, (2) in writing, and (3) served and filed within 14 days after

being served with a copy of this report. 28 U.S.C. § 636(b)(1); FED.R.CIV. P. 6(a), 6(b) and 72(b).

A party’s failure to object bars that party from (1) entitlement to de novo review by a district

judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual

findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass’n.,

79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

2

_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 2nd day of February, 2024.

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