Opinion
Civil Action No. 4:05-CV-0372-Y.
November 15, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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 are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254 brought by Carol Ann Ables under an alleged power of attorney in behalf of Michael Thad Ables.
B. PARTIES
Petitioner Michael Thad Ables, TDCJ #1224897, is a state prisoner in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Snyder, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
In August 2001, Ables was charged by indictment with aggravated sexual assault of his son in the 266th Judicial District Court of Erath County, Texas. (1State Habeas R. at 75) On February 23, 2004, pursuant to a plea bargain agreement, Ables entered a plea of guilty to the charged offense and was sentenced to twenty-five years' confinement. (1State Habeas R. at 84-133.) Ables did not appeal his conviction or sentence. (Petition at 3.) On January 26, 2005, pursuant to a purported power of attorney, Carol Ann Ables, Ables's mother, filed a state application for writ of habeas corpus in Ables's behalf, attacking his conviction and sentence on the same grounds raised herein based on his alleged mental incompetency. (State Habeas R 2-71.) The state trial court, however, found that in light of the state court record together with the court's own recollection and observations of Ables during the February 23, 2004 plea proceeding, the state application was without legal or factual merit. ( Id. at 222.) In turn, the Texas Court of Criminal Appeals denied the state application without written order on May 25, 2005. Ex parte Ables, Application No. 61,521-01. Carole Ann Ables filed this federal petition for writ of habeas corpus in Ables's behalf on June 6, 2005.D. ISSUES
The following grounds for relief are raised by this petition: (1) the trial court violated Ables's rights by failing to conduct a competency hearing when a bona fide doubt existed as to Ables's mental competence; (2) the trial court erred by finding that Ables's plea was entered voluntarily and intelligently due to his mental incompetence; (3) Ables's trial counsel was ineffective by failing to use the evidence of his mental incompetence; (4) the trial court erred by failing to suppress Ables's written statement to police; and (5) Ables's sentence constitutes cruel and unusual punishment for an incompetent individual. (Petition at 7-8 Attachment.)
E. RULE 5 STATEMENT
Dretke admits that Ables has exhausted his state remedies on the claims presented as required by 28 U.S.C. § 2254(b)(1)(a). (Resp't Answer at 3.)
F. JURISDICTION
1. Standing
A petition for writ of habeas corpus must be "in writing and signed and verified by the person for whose relief it is intended or by someone acting in his behalf" — a so-called "next friend." 28 U.S.C. § 2242; Weber v. Garza, 570 F.2d 511, 513 (5th Cir. 1978). A "next friend" does not himself or herself become a party to the habeas corpus action in which he or she participates, but simply pursues the cause on behalf of the detained person, who remains the real party in interest. Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). "Next friend" standing is by no means granted automatically to whomever seeks to pursue an action on behalf of another. Id. A party seeking to represent a prisoner in a habeas proceeding must (1) explain why the real party in interest cannot prosecute the action in his own behalf, and (2) establish a significant relationship with and a true dedication to the best interests of the real party in interest. Id. at 163-64. The burden is on the "next friend" clearly to establish the propriety of his or her status and thereby justify the jurisdiction of the court. Id. at 164.
Here, the mere fact that Ables may have given his mother a "power of attorney" is not sufficient to justify "next friend" status. See Weber, 570 F.2d at 514. Thus, on October 24, 2005, the undersigned ordered Carol Ann Ables to demonstrate that she has standing as "next friend" to petition on her son's behalf. She did not, however, comply with that order in her reply filed on November 10, 2005. Assuming arguendo that Carol Ann Ables can establish a significant relationship with and a true dedication to the best interests of Ables, there is insufficient evidence that Ables cannot prosecute this action in his own behalf. Although Ables has a history of psychological problems, the record reflects he was competent to stand trial in 2004. (State Habeas R. at 140-88.) Carol Ann Ables has presented no evidence to suggest that Ables is now so mentally incompetent that he cannot file his own petition.
II. RECOMMENDATION
Ables's petition for writ of habeas corpus should be dismissed without prejudice for want of jurisdiction.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 6, 2005. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 6, 2005, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.