          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                    May 13, 2009
                                 No. 07-50427
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

JAVIER MARQUEZ WENCESLAO

                                             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. 5:06-CV-628


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Javier Marquez Wenceslao, Texas state prisoner # 1228047, pleaded guilty
to burglary of a habitation with intent to commit sexual assault and endangering
a child and was sentenced to sixty years and two years of imprisonment
respectively, with the sentences to be served consecutively. This appeal arises
from the district court’s denial of Wenceslao’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. This court granted Wenceslao a certificate of


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 07-50427

appealability on whether the imposition of consecutive sentences violated his
federal due process rights.      Based on the following reasons, Wenceslao is
procedurally barred from receiving a determination on the merits of his claim.
      Texas Penal Code § 3.03(a) provides that when a defendant is “found guilty
of more than one offense arising out of the same criminal episode prosecuted in
a single criminal action . . . the sentences should run concurrently.” Wenceslao
argues that this statute is mandatory and creates a substantial legitimate
sentencing expectation and that the arbitrary deprivation of this expectation
may create an independent federal constitutional violation pursuant to Hicks v.
Oklahoma, 447 U.S. 343, 346 (1980). The State argues that Wenceslao is not
entitled to habeas relief because he failed to exhaust his state court remedies.
See Mercadel v. Cain, 179 F.3d 271, 276 (5th Cir. 1999).
      This court reviews de novo whether a federal habeas petitioner exhausted
all available state court remedies. Morris v. Dretke, 413 F.3d 484, 491 (5th Cir.
2005).   The exhaustion requirement is satisfied when the substance of the
federal habeas claim has been “fairly presented” to the state’s highest court.
Morris v. Dretke, 379 F.3d 199, 204 (5th Cir. 2004) (internal citation and
quotations omitted).    The petitioner must provide the state court a “‘fair
opportunity to pass upon the claim.” Mercadel, 179 F.3d at 275 (quoting Dupuy
v. Butler, 837 F.2d 699, 702 (5th Cir. 1988)). The exhaustion requirement is not
satisfied where the petitioner sets out new legal theories or factual claims in his
federal habeas petition. Neville v. Dretke, 423 F.3d 474, 478 (5th Cir. 2005).
      In his state habeas application, Wenceslao did not assert that his federal
due process rights had been violated nor did he provide a Hicks analysis.
Because Wenceslao failed to present the Texas Court of Criminal Appeals (CCA)
with a constitutional claim that described both the operative facts and the
federal legal theory upon which the claim was based, his claim is unexhausted.
See Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005); Wilder v. Cockrell, 274
F.3d 255, 259 (5th Cir. 2001).

                                        2
                                No. 07-50427

      In addition, if Wenceslao were to advance his claim in a successive state
habeas petition, the Texas CCA would find the claim barred by the Texas abuse-
of-writ doctrine. See T EX. CODE C RIM. P. A NN. art. 11.071 § 5(a). Therefore,
Wenceslao procedurally defaulted on his unexhausted claim.       See Nobles v.
Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (internal citation and quotations
omitted). Wenceslao has not demonstrated either cause and actual prejudice or
that failure to consider the claim will result in a fundamental miscarriage of
justice. See Smith v. Quarterman, 515 F.3d 392, 403 (5th Cir. 2008) (internal
quotation marks and citation omitted); Neville, 423 F.3d at 480. Accordingly, we
are barred from making a determination on the merits of Wenceslao’s federal due
process claim. See Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995).
      The judgment of the district court is AFFIRMED.




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