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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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, 

, 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, 

, 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 

of the district court is AFFIRMED.




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