FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL D. STICKNEY, Magistrate Judge.

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow.

I. Procedural Background

Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his conviction for aggravated sexual assault. State of Texas v. Larry Price, No. F-1130771-P (203rd Dist. Ct., Dallas County, Tex., Apr. 6, 2012). Petitioner was sentenced to life in prison.

On December 3, 2013, the Fifth District Court of Appeals modified the judgment to correct several errors and affirmed Petitioner's conviction. Price v. State, 2013 WL 6244542 (Tex. App.-Dallas 2013, pet. ref'd). On April 9, 2014, the Court of Criminal Appeals refused Petitioner's petition for discretionary review. PDR No. 0037-14.

On June 16, 2014, Petitioner filed a state petition for writ of habeas corpus. Ex parte Price, Application No. 81,918-01. On September 17, 2014, the Court of Appeals denied the petition without written order on the findings of the trial court.

On April 27, 2015, Petitioner filed this federal petition. He argues the prosecutor made improper direct and indirect comments regarding his failure to testify.

On October 1, 2015, Respondent filed her answer. The Court granted Petitioner's motion for extension of time to file a reply, but he did not file a reply. The Court now finds the petition should be dismissed.

II. Discussion

1. Standard of Review

The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254 provide:

See 28 U.S.C. § 2254(d). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 380-84 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id.

2. Procedural Bar

Respondent argues that Petitioner's claims are procedurally barred because Petitioner failed to raise the claims in state court.

A federal court will ordinarily not review a claim where a petitioner has not presented his claim to the highest court of the state and the state court to which he would be required to present his claims would now find the claim procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 729-31 (1991).

The record reflects that, in state court, Petitioner failed to raise his current claims that during closing arguments of the guilt/innocence phase the prosecutor indirectly commented on his failure to testify, and during the punishment phase the prosecutor directly commented on his failure to testify. Accordingly, the Texas Court of Criminal Appeals has not reviewed the claims. If this Court were to require Petitioner to return to state court to exhaust these claims, they would be subject to dismissal because it is too late for Petitioner to file a petition for discretionary review and a second state habeas petition would be subject to an abuse-of-the-writ dismissal.

To overcome the procedural bar, a petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a "fundamental miscarriage of justice." Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997) (citing Coleman, 501 U.S. at 750). Petitioner has shown no cause for his failure to present these claims to the Texas Court of Criminal Appeals.

Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. This exception is "confined to cases of actual innocence, `where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.'" Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). To establish the required probability that he was actually innocent, a petitioner must support his allegations with new, reliable evidence that was not presented at trial and must show it was more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing Schlup, 513 U.S. at 327). Petitioner has presented no new, reliable evidence showing that it was more likely than not that no reasonable juror would have convicted him. Petitioner has not overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal habeas relief on these claims.

III. Recommendation

For the foregoing reasons, the Court recommends that Petitioner's § 2254 petition be dismissed with prejudice as procedurally barred.