IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 27, 2008
No. 07-10796
Summary Calendar Charles R. Fulbruge III
Clerk
JESSIE CALVIN HAWKINS
Petitioner-Appellee
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-830
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jesse Hawkins, Texas prisoner # 287280, was convicted of aggravated
robbery and sentenced to serve 25 years in prison. Hawkins filed the instant 28
U.S.C. § 2254 petition to raise claims concerning credit for time served while on
parole or mandatory supervision, and the district court dismissed the petition
without prejudice for want of exhaustion. The respondent appeals the district
court’s judgment and argues that the dismissal should have been with prejudice.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10796
The respondent argues that the exhaustion requirement should be flexibly
applied and that, because Hawkins’s § 2254 petition was untimely and lacked
merit, the district court should have dismissed it with prejudice.
We review the district court’s decision to dismiss the petition without
prejudice for an abuse of discretion. See Horsley v. Johnson, 197 F.3d 134, 136
(5th Cir. 1999). Our review of the record does not show that the district court’s
decision to dismiss Hawkins’s petition without prejudice was based on a legal
error or a clearly erroneous view of the pertinent facts. See Rodriguez v.
Johnson, 104 F.3d 694, 696 (5th Cir. 1997). Consequently, the district court did
not abuse its discretion when it decided to dismiss Hawkins’s § 2254 petition
without prejudice. See id.
The judgment of the district court is AFFIRMED.
2