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this opinion should not be published and is not precedent except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).
4