* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 The petitioner spells his name “Flentroy,” and the docket uses that spelling; however,

the state courts have consistently used the spelling “Flenteroy.”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51081

Summary Calendar

CHARLIE FLENTROY

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-cv-00188

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Charlie Flentroy,1 Texas prisoner No. 1126349, was granted a certificate

of appealability to appeal the district court’s determination that he has not

exhausted his state remedies with regard to an affirmative finding of a deadly

weapon used to enhance his sentence. Flentroy’s motion to stay proceedings in

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2008

Charles R. Fulbruge III

Clerk
No. 06-51081

2

this court so that he may pursue a new claim unrelated to the arguments in his

federal habeas petition is denied, as is his motion for permission to file a

supplemental brief. Flentroy’s motion to correct records is denied as moot. In

addition, Director Quarterman’s motion to supplement the record is denied. 

A jury acquitted Flentroy of aggravated robbery by use or exhibition of a

deadly weapon and convicted him of the lesser included offense of simple

robbery; however, the jury made an affirmative finding of a deadly weapon

during the penalty phase of trial. See Flenteroy v. State, 105 S.W.3d 702, 704-05

(Tex. App. 2003). The Court of Appeals of Texas modified the judgment to delete

the deadly weapon finding, buttheTexas Court of Criminal Appeals granted the

State's petition for discretionary review and reversed and remanded for

reinstatement of the affirmative finding of a deadly weapon. Flenteroy v. State,

187 S.W.3d 406 (Tex. Crim. App. 2005) (en banc). 

Flentroy’s federal habeas petition asserts that the evidence was

insufficient to support the deadly weapon finding; that the sentence

enhancement violated principles of double jeopardy because his acquittal of

aggravated robbery made it implicit that the jury found that the offense did not

involve a deadly weapon; and that the indictment did not provide adequate

notice to support the finding of a deadly weapon. Flentroy argues that he has

exhausted his federal claims because he presented the substance of his

arguments to the Texas Court of Criminal Appeals in opposition to the State’s

petition for discretionary review. He further argues that exhaustion would be

futile because the Court of Criminal Appeals has considered and rejected his

substantive arguments on the merits. 

The Respondent argues that, under Texas law, Flentroy defaulted his

claims by failing to preserve them in a cross-petition for discretionary review.

See Keith v. State, 782 S.W.2d 861, 864 (Tex. Crim. App. 1989) (en banc); Wilson

v. State, 772 S.W.2d 118, 120 & n.3 (Tex. Crim. App. 1989) (en banc). Claims are

not exhausted unless an applicant has presented his claims to the state courts
No. 06-51081

3

in compliance with state court rules. Mercadel v. Cain, 179 F.3d 271, 275 (5th

Cir. 1999).

A federal habeas court may excuse a petitioner’s failure to exhaust state

remedies and review his constitutional claims on the merits if the petitioner

demonstrates cause and prejudice for the default or if he establishes that failure

to consider the claims will resultin a fundamental miscarriage of justice. Morris

v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005); Coleman v. Thompson, 501 U.S. 722,

750 (1991). Flentroy has not attempted to make either showing. 

A further exception to the exhaustion requirement applies when

exhaustion would be plainly futile. Morris, 413 F.3d at 492. The exhaustion

requirement is satisfied when the substance or “substantial equivalent” of the

petitioner’s claims has been “fairly presented to the highest state court.”

Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998); see also Picard v.

Connor, 404 U.S. 270, 275-78 (1971). Exhaustion is unnecessary when “resort

to state remedies would be futile, because . . . the state court’s attitude toward

a petitioner’s claims is a foregone conclusion.” Dilworth v. Johnson, 215 F.3d

497, 501 (5th Cir. 2000) (internal quotation marks omitted). A “subtle

incongruity between [state] procedural rules and federal case law” should not

bar consideration of a petitioner’s constitutional claims where, as in this case,

the issue was accorded some level of judicial review. Id.

The record shows that Flentroy presented the substantial equivalent of his

federal constitutional claims to the Court of Criminal Appeals in his brief

opposing the State’s petition for discretionary review. As the Court of Criminal

Appeals has considered and rejected these claims on the merits, we conclude

that, in the particular circumstances ofthis case, exhaustion of Flentroy’s claims

would be futile and that it is therefore unnecessary. Id. Accordingly, we vacate

the dismissal without prejudice of Flentroy’s federal petition for failure to

exhaust state remedies and remand for consideration on the merits.

VACATED AND REMANDED. All pending motions are DENIED.