                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 99-40083


FREDERICK L. CLARK
                                           Petitioner-Appellant,

                             versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
                                        Respondent-Appellee.




          Appeal from the United States District Court
                For the Eastern District of Texas
                          (4:97-CV-369)

                          January 10, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit
Judges.

PER CURIAM:*

     Frederick Clark was charged with escaping from jail while

serving a forty-five year sentence.    He pled guilty, even though

the court advised him that he was doing so without benefit of a

plea agreement, and that his sentencing exposure included life

imprisonment.    Clark received a life sentence, stacked with his

forty-five year sentence.




     *
      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this opinion should not be published and is not precedent except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.
     Clark appealed, challenging the admission of certain evidence

as well as the court’s decision to stack his sentences.                  The state

appellate court affirmed, and Clark did not seek review by the

Texas Court of Criminal Appeals.              He then filed a state habeas

petition.    His argument was that his guilty plea was involuntary

because counsel had told him he would receive a concurrent sentence

of only forty-five years.           The Texas Court of Criminal Appeals

remanded this application for an evidentiary hearing.

     As     the     trial   court    collected      affidavits     during    this

evidentiary hearing, new facts were unearthed that form the basis

of the current habeas petition.                  Specifically, while Clark’s

counsel swore that no plea bargain offer was ever made, the

District Attorney stated in a sworn affidavit that, on April 5,

1994, she sent to Clark’s attorney an offer of a fifty-year

sentence to run concurrently with Clark’s prior forty-five year

prison term        if   Clark   pleaded   guilty.       The   District    Attorney

recounted that she warned Clark’s attorney that if Clark rejected

the offer,        she   would   request   that    the   judge   “stack”    Clark’s

sentences.        Furthermore, the District Attorney stated in her

affidavit that, on April 26, 1994, she sent a second offer to

Clark’s attorney, reducing the proposed sentence to forty years.

This offer was to remain open until May 20, 1994.                  The District

Attorney stated that Clark did not accept either offer; and on June

22, 1994, Clark waived a jury trial and pleaded guilty without a

plea bargain agreement.

                                          2
     As promised, the District Attorney requested that the trial

court stack Clark’s sentences. The court sentenced Clark to a life

sentence to begin after Clark finished serving his prior forty-five

year sentence.

     Ruling on Clark’s state habeas petition, the trial court found

that counsel did not mislead Clark into thinking his exposure was

only forty-five years, and that the trial court’s admonishment

during the plea colloquy ensured that Clark’s plea was voluntary.

The Texas Court of Criminal Appeals affirmed.

     Clark then filed for federal habeas relief, arguing that his

attorney’s failure to communicate the plea offers constituted

ineffective assistance of counsel.             The district court held that

Clark defaulted by failing to raise this question before the state

court, and therefore dismissed with prejudice.              Clark appeals.

     Clark argues that his procedural default should be excused

because he satisfies the cause and prejudice standard.1             According

to Clark, since his attorney failed to inform him of the plea

offers,    the   existence   of   the       plea   offers   constitutes   newly

discovered facts, and therefore cause.2               Further, Clark argues,

failure to inform him of the plea offers rendered his counsel

ineffective, also providing cause for default.3


     1
         See Murray v. Carrier, 477 U.S. 478, 485 (1986).
     2
         See McCleskey v. Zant, 499 U.S. 467, 497 (1991).
     3
         See id. at 494.

                                        3
     We decline to resolve this question, because Clark has not

exhausted his state court options for pursuing this claim.   Texas

Criminal Procedure Code Article 11.07 §4(a) permits prisoners to

file successive state habeas petitions if the “factual . . . basis

for the claim was unavailable on the date the applicant filed the

previous application.”4    Clark has not presented this claim to a

Texas state court yet.      Therefore, following the rule in this

Circuit, we REVERSE and REMAND this case to the district court,

with instructions to dismiss without prejudice.5




     4
         Tex. Crim. P. Code art. 11.07§4(a).
     5
       See Mercadel v. Cain, 179 F.3d 271, 275-77 (5th Cir. 1999)
(holding that federal courts must withhold relief, even on
meritorious habeas petitions, until prisoner has exhausted state
court remedies).

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