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

                                                                             FILED
                                                                           August 26, 2008
                                     No. 06-51081
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

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




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.”
                                 No. 06-51081

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, but the Texas 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

                                       2
                                  No. 06-51081

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 result in 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 of this 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.

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