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

                                                                               FILED
                                                                              May 13, 2008

                                         No. 05-20758                    Charles R. Fulbruge III
                                                                                 Clerk

GARY DWAINE SPIER

                                                     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
                    Southern District of Texas, Houston Division
                              USDC No. 4:04-CV-2274


Before DAVIS and SOUTHWICK, Circuit Judges, and DRELL, District Judge.*
PER CURIAM:**
       Petitioner-Appellant Gary Dwaine Spier (“Spier”) appeals from the district
court’s dismissal without prejudice of his petition for a writ of habeas corpus
based on Spier’s failure to exhaust state remedies.                  Spier challenges that
determination. For the reasons set forth below, we affirm.




       *
           District Judge of the Western District of Louisiana, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                     No. 06-11324

                                            I.
      On January 22, 2002, Gary Dwaine Spier was given deferred adjudication1
of six years by the 9th District Court of Waller County, Texas after entering a
plea of nolo contendere to a felony charge of sexual assault of a child. On
December 5, 2002, the state district court revoked Spier’s deferred adjudication
after finding that he had violated its terms. Consequently, the court adjudicated
his guilt and sentenced him to fifteen years imprisonment. Spier did not appeal
from either of these proceedings.
      Spier filed a state application for a writ of habeas corpus on May 8, 2003
in the state district court. The clerk of the district court erroneously forwarded
the application to an intermediate appellate court, which dismissed it for lack
of jurisdiction on September 11, 2003. The state district court received a copy
of this dismissal on September 19, 2003. Realizing its error, it forwarded Spier’s
state habeas application to the proper court, the Texas Court of Criminal
Appeals, in late October 2003 and notified Spier of the error.
      Meanwhile, Spier had submitted a “Motion to Retract” his state habeas
petition in the state district court on September 18, 2003. The court properly
forwarded that motion to the Texas Court of Criminal Appeals, which evidently
received it on September 23, 2003, before it received Spier’s state habeas
petition. On November 12, 2003, the Texas Court of Criminal Appeals denied
the state habeas petition without written order.                 However, the court
reconsidered the matter sua sponte, and on January 21, 2004 it dismissed Spier’s
state habeas application without a written opinion.
      Rather than refile a state habeas application, Spier filed a federal petition
for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District


      1
        Deferred adjudication is a form of community supervision, or probation, authorized
by TEX. CODE CRIM. PROC. ANN. art. 42.12 (Vernon 2007). See Rodriguez v. State, 939 S.W.2d
211, 220-21 (Tex. App. 1997).

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Court for the Southern District of Texas on June 15, 2004. On January 31, 2005,
respondent Doug Dretke, Director of the Texas Department of Criminal Justice,2
filed a motion for summary judgment arguing primarily that the federal habeas
petition was time-barred and also asserting (and reserving the right to brief the
argument) that Spier had failed to exhaust his state court remedies. On July 5,
2005, the district court granted summary judgment in favor of Dretke on the
ground that Spier had failed to exhaust his state court remedies, dismissed
Spier’s federal habeas petition without prejudice, and denied Spier a certificate
of appealability.
      Spier sought a certificate appealability from this Court. We found that,
under Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), Spier had demonstrated
that jurists of reason would debate the correctness of the district court’s
conclusion on the exhaustion issue. Accordingly, we granted the certificate of
appealability on the exhaustion issue and additionally directed the parties to
brief the issue of whether Spier’s federal habeas petition under 28 U.S.C. § 2254
is time-barred.
                                          II.
      We review a district court’s decision to dismiss without prejudice a federal
habeas petition for abuse of discretion. Horsley v. Johnson, 197 F.3d 134, 136
(5th Cir. 1999) (citing Granberry v. Greer, 481 U.S. 129, 131 (1987)). Here,
Spier’s federal habeas petition arises under 28 U.S.C. § 2254, which provides, in
relevant part:
      (b)(1) An application for a writ of habeas corpus on behalf of a
      person in custody pursuant to the judgment of a State court shall
      not be granted unless it appears that–




      2
         Current respondent-appellee Nathaniel Quarterman stands in essentially the same
position as former respondent Dretke.

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             (A) the applicant has exhausted the remedies available
             in the courts of the State; or . . . .

      (c) An applicant shall not be deemed to have exhausted the
      remedies available in the courts of the State, within the meaning of
      this section, if he has the right under the law of the State to raise,
      by any available procedure, the question presented.

Id. This Court has explained:
      A fundamental prerequisite to federal habeas relief under § 2254 is
      the exhaustion of all claims in state court prior to requesting federal
      collateral relief. A federal habeas petition should be dismissed if
      state remedies have not been exhausted as to all of the federal court
      claims.

      The exhaustion requirement is satisfied when the substance of the
      federal habeas claim has been fairly presented to the highest state
      court. In Texas, the highest state court for criminal matters is the
      Texas Court of Criminal Appeals. A federal court claim must be the
      “substantial equivalent” of one presented to the state courts if it is
      to satisfy the “fairly presented” requirement. The habeas applicant
      need not spell out each syllable of the claim before the state court to
      satisfy the exhaustion requirement. This requirement is not
      satisfied if the petitioner presents new legal theories or new factual
      claims in his federal application.

Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (footnotes omitted).
      In the instant case, confusion arises out of the seemingly complicated
procedural history of Spier’s state application for habeas relief. However, the
ultimate issue actually is fairly simple: What effect should the denial and
subsequent dismissal of Spier’s state application by the Texas Court of Criminal
Appeals have on the exhaustion requirement set out by 28 U.S.C. §
2254(b)(1)(A)?
      The Texas Court of Criminal Appeals has explained the difference between
a denial and a dismissal as follows: “In our writ jurisprudence, a ‘denial’ signifies
that we addressed and rejected the merits of a particular claim while a


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‘dismissal’ means that we declined to consider the claim for reasons unrelated
to the claim's merits.” Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App.
1997). However,
       [e]xhaustion normally “requires only that the federal claim have
       been fairly presented to the highest court of the State, either on
       direct review of the conviction or in a post-conviction attack.” Thus,
       if the substance of the petitioner’s claims is brought to the state
       court’s attention, the fact that the court does not explicitly pass on
       the claims is irrelevant to the question of exhaustion, because the
       opportunity to consider them has been presented.
Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982) (citations omitted).
       In the instant case, the Texas Court of Criminal Appeals initially denied
Spier’s state habeas application and then, on reconsideration, dismissed the
application without a written opinion.3 Although, under Texas jurisprudence,
the dismissal probably indicates a disposition for reasons unrelated to the
merits, Ex parte Torres, 943 S.W.2d at 472, the dismissal could still constitute
exhaustion under 28 U.S.C. § 2254(b)(1)(A), simply because the petitioner’s claim
had been presented to the highest court of the State. See Escobedo v. Estelle, 650
F.2d 70, 75 (5th Cir. 1981) (cited in Carter, 677 F.2d at 443) (holding that the
petitioner had satisfied § 2254's exhaustion requirement where he had “squarely
raised precisely the grounds upon which he relies in this action” but the Texas
Court of Criminal Appeals had dismissed the petition without a written opinion).
       Yet, even assuming that the dismissal could satisfy the exhaustion
requirement, 28 U.S.C. § 2254(c) precludes a habeas petitioner’s fulfilling the


       3
           The dismissal simply reads:

                APPLICATION FOR 11.07 WRIT OF HABEAS CORPUS
                RECONSIDERED ON COURT’S OWN MOTION
                ACTION TAKEN
                DISMISSED.

R. at 161.

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exhaustion requirement “if he has the right under the law of the State to raise,
by any available procedure, the question presented.” Id. In this case, because
his first state habeas application was dismissed for reasons apparently unrelated
to the merits, Spier should be able to file a new one. See Ex parte Thomas, 953
S.W.2d 286 (Tex. Crim. App. 1997) (en banc) (holding that the applicant’s second
state habeas application was not barred where the Texas Court of Criminal
Appeals had disposed of the first application “for reasons unrelated to the merits
and never addressed the merits of the grounds raised therein, [and thus] there
was no final disposition of applicant's initial writ application”). Texas imposes
no time limits on applications for habeas relief, provided the time elapsed is not
so long as to trigger application of the doctrine of laches. See Ex parte Carrio,
992 S.W.2d 486, 488-90 (Tex. Crim. App. 1999) (remanding to the district court
for a determination of whether a fourteen-year delay violated the doctrine of
laches). Accordingly, under 28 U.S.C. § 2254(c), Spier is deemed not to have
satisfied the exhaustion requirement, and the district court did not abuse its
discretion by so ruling.
      Because we hold that the district court did not abuse its discretion in
dismissing without prejudice Spier’s federal habeas petition for failure to
exhaust his state court remedies, we decline to address the issue of whether his
federal habeas petition is time-barred.
                                       III.
      For the foregoing reasons the district court’s dismissal, without prejudice,
of Spier’s federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 is
affirmed.


AFFIRMED.




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