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 1999-08

Morace v. Cain ( 1999 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30033
Summary Calendar
JOHN WILLIAM MORACE,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-443
--------------------
August 20, 1999
Before KING, Chief Judge, and HIGGINBOTHAM and CARL E. STEWART,
Circuit Judges.
PER CURIAM:*
John William Morace, Louisiana prisoner No. 114169, appeals
the district court’s dismissal of his
    28 U.S.C. § 2254
     petition
asserting a claim of an excessive sentence as a result of being
sentenced as a second felony offender.   The district court
dismissed without prejudice for failure to exhaust state
remedies.
In granting Morace a certificate of appealability (COA), the
district court stated that the issue of whether Morace had
*
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that this opinion should not be published and is not precedent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. 99-30033
-2-
exhausted his state court remedies was a substantial showing of
the denial of a constitutional right.       Exhaustion, however, is
not a constitutional issue.      See Sonnier v. Johnson,
    161 F.3d 941
    , 943 (5th Cir. 1998).    Therefore, we will treat this COA as
one granted due to a “credible showing of exhaustion.”       See
Whitehead v. Johnson,
    157 F.3d 384
    , 386 (5th Cir. 1998) (citing
Murphy v. Johnson,
    110 F.3d 10
    , 11 (5th Cir. 1997) (applying the
COA standard to nonconstitutional issue of exhaustion of state.
remedies).
A petitioner seeking habeas relief under § 2254 is required
to exhaust all claims in state court prior to requesting federal
collateral relief.     See id. at 387.   Here, the Louisiana Third
Circuit Court of Appeals refused to consider Morace’s excessive
sentence claim in a post-conviction proceeding and advised Morace
to seek and out-of-time appeal instead.       The Louisiana Supreme
Court summarily denied Morace’s writ of certiorari.       Thus, there
was no adjudication on the merits of Morace’s sentencing claim
due to the procedural defect in his petition.
A claim is not exhausted unless the habeas petitioner
provides the highest state court with a “fair opportunity to pass
upon the claim.”     Mercadel v. Cain,
    1999 WL 409655
    , *4 (5th Cir.
June 21, 1999) (per curiam) (citing Dupuy v. Butler,
    837 F.2d 699
    , 702 (5th Cir. 1988)).    This “fair opportunity” requires that
the applicant “present his claims before the state courts in a
procedurally proper manner according to the rules of the state
court.”
    Id.
       Although Morace arguably presented his sentencing
claim to the Louisiana Supreme Court, the Louisiana Supreme Court
No. 99-30033
-3-
was denied a fair opportunity to consider Morace’s claim because
Morace has not yet filed an out-of-time appeal; his claim
therefore remains unexhausted.   See
    id.
       Accordingly, the
district court’s dismissal without prejudice is AFFIRMED.