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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-20608
_____________________
DARREL EUGENE ALEXANDER,
Petitioner-Appellee,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 21, 1998
Before WISDOM, DAVIS, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this state habeas action, in which the district court
granted relief to Darrel Eugene Alexander, a Texas prisoner, on the
grounds that his parole revocation was based on insufficient
evidence and that the statute which served as the basis for that
revocation had been declared unconstitutional by the Texas courts
(the latter ground having been raised sua sponte by the court),
primarily at issue is whether such relief could be granted, in that
Alexander has not exhausted state remedies as to the state
statutory issue. We VACATE and REMAND with instructions to dismiss
the petition without prejudice.

I.
Alexander, who was convicted in Texas state court in 1986 for
manufacturing a controlled substance and sentenced to 65 years
imprisonment, was paroled in 1991. As a condition of parole, he
was required to "[o]bey all municipal, county, state and federal
laws".
In February 1995, Alexander's former common-law wife reported
to the police that Alexander was stalking her. Later that month,
she executed an affidavit accusing Alexander of stalking and
harassment. But, the next month, she executed another affidavit to
"clarify" her previous affidavit, stating that she had no personal
knowledge of any threats and that Alexander did not "intend to
harass, annoy, alarm, abuse, torment or embarrass anyone".
And, she testified at Alexander's parole revocation hearing
that he did not threaten, stalk, or harass her. In May 1995,
Alexander's parole was revoked for stalking/harassment.
Alexander filed an application in March 1997 for state habeas
relief, claiming that there was insufficient evidence for the
revocation. The application was denied without written order that
May.
Alexander filed a petition for federal habeas relief in June
1997, again claiming insufficient evidence for the revocation.*
*
The petition was timely filed, because the one-year
period of limitation was tolled during the pendency of Alexander's
state habeas application. See 28 U.S.C. � 2244(d); Fields v.
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The magistrate judge recommended that relief be granted not only on
the sufficiency ground, but also, sua sponte, on the ground that
the Texas courts had held unconstitutional the stalking statute
under which Alexander's parole had been revoked.
Notwithstanding the State's objections, including that the
state statutory issue had not been exhausted in state court, the
district court adopted the magistrate judge's recommendation. It
ordered that Alexander's revocation be vacated and that he be
reinstated on parole.
The district court denied the State's post-judgment motions
for relief, granted Alexander's motion for a release order, and
denied the State's motion to stay the judgment pending appeal.
This court granted the State's motion for a stay and expedited the
appeal.
II.
The State contends that there was sufficient evidence to
revoke Alexander's parole; alternatively, it contends that, because
the State has not waived exhaustion, the district court lacked
authority to grant relief sua sponte on the unexhausted state
statutory issue. Alexander, pro se, does not dispute that the
state statutory basis for his habeas relief has not been considered
by the state courts; instead, he counters that the state process is
ineffective and that the district court should be able to grant
Johnson, 159 F.3d 914 (5th Cir. 1998).
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relief sua sponte on an unexhausted claim if proper circumstances
exist.
In Bird v. Collins, 924 F.2d 67 (5th Cir.), cert. denied, 501
U.S. 1213 (1991), the district court, sua sponte, raised and then
rejected a claim that had never been asserted by the habeas
petitioner and which, therefore, had not been exhausted in state
court. Our court did not decide whether the district court had the
authority to raise the claim sua sponte, but stated that the claim
was not properly before our court, vacated the district court's
ruling regarding that claim, and affirmed the judgment as modified.
Id. at 68.
We need not decide whether, in this case, the district court
could sua sponte raise the state statutory issue. We assume,
arguendo, that it could. See id. But here, unlike in Bird, the
district court granted relief on an unexhausted claim that had
never been asserted by Alexander.
In addition, Bird was decided prior to the enactment of the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. ��
2241-55 (Supp. 1998), which is applicable to Alexander, because he
filed for federal habeas relief after AEDPA's 24 April 1996
effective date. The Act provides in pertinent 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--
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(A)
the
applicant
has
exhausted the remedies available in
the courts of the State; or
(B)(i)
there is an absence
of
available
State
corrective
process; or
(ii) circumstances exist that
render such process ineffective to
protect the rights of the applicant.
(2)
An application for a writ of habeas
corpus may be denied on the merits,
notwithstanding the failure of the applicant
to exhaust the remedies available in the
courts of the State.
(3)
A State shall not be deemed to have
waived the exhaustion requirement or be
estopped from reliance upon the requirement
unless the State, through counsel, expressly
waives the requirement.
28 U.S.C. � 2254(b) (emphasis added).
Although AEDPA authorizes a district court to deny relief on
an unexhausted claim, see Jones v. Jones, ___ F.3d ___, 1998 WL
__________ (5th Cir. Dec. 16, 1998); Nobles v. Johnson, 127 F.3d
409, 423 (5th Cir. 1997), cert. denied, ___ U.S. ___, 118 S. Ct.
1845 (1998), it does not authorize a district court to grant relief
on an unexhausted claim, "unless the State, through counsel,
expressly waives the requirement". 28 U.S.C. � 2254(b)(3). The
State has not done so in this case. Accordingly, the district
court lacked authority to grant relief on the state statutory
ground.
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A habeas petition containing both exhausted and unexhausted
claims is a "mixed" petition which should be dismissed without
prejudice. Rose v. Lundy, 455 U.S. 509, 510 (1982); see also
Whitehead v. Johnson, 157 F.3d 384, 387 & n.6 (5th Cir. 1998).
Although Alexander did not assert the unconstitutionality of the
Texas stalking statute as a ground for habeas relief, his federal
habeas petition nevertheless became a "mixed" petition when the
district court, sua sponte, raised, and granted relief on, that
issue. And, as stated, Alexander urges that basis on appeal in
support of affirmance of the judgment. Accordingly, the petition
must be dismissed without prejudice, unless "there is an absence of
available State corrective process" or "circumstances exist that
render such process ineffective to protect the rights of the
applicant". 28 U.S.C. � 2254(b)(1)(B).
Alexander maintains that exhaustion would be futile and that
the current state process is ineffective. We disagree. Alexander
has not requested habeas relief from Texas courts on the ground
that the stalking statute which apparently served as the basis for
his parole revocation is unconstitutional. Nor has he demonstrated
that there is no available corrective process in the state courts
or that there are circumstances that render such process
ineffective.
Needless to say, the basis for the exhaustion doctrine
codified in AEDPA is comity. See Rose, 455 U.S. at 516. As
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reflected by the above-discussed AEDPA provisions, the interests of
comity are served best in this instance by Texas courts having an
opportunity to consider whether Alexander's parole was revoked on
the basis of an unconstitutional state statute.
Along this line, and in the event that Alexander is
unsuccessful in obtaining relief in Texas courts, the instant
federal court dismissal of his claims without prejudice will not
bar him from renewing his claim for federal habeas relief, should
the State assert, if and when he does so, that his renewed petition
is successive. See In re Gasery, 116 F.3d 1051, 1052 (5th Cir.
1997) (refiling of federal habeas petition following dismissal of
original petition without prejudice for failure to exhaust state
remedies is continuation of first collateral attack, and thus not
a "successive petition" within the meaning of 28 U.S.C. � 2244(b));
see also Stewart v. Martinez-Villareal, ___ U.S. ___, 118 S. Ct.
1618, 1622 (1998) (noting that Court has never "suggested that a
prisoner whose habeas petition was dismissed for failure to exhaust
state remedies, and who then did exhaust those remedies and
returned to federal court, was by such action filing a successive
petition").
III.
For the foregoing reasons, the judgment is VACATED and this
case is REMANDED to the district court with instructions to dismiss
without prejudice.
VACATED and REMANDED
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