Opinion
CIVIL ACTION NO. 4:03-CV-522-Y
September 30, 2003
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS (With Special Instructions to Clerk of the Court)
In this action brought by petitioner Samuel John Major Davis under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommenda tion of the United States magistrate judge filed on September 10, 2003; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on September 29, 2003.
The Court, after de novo review, concludes that Samuel John Major Davis's objections must be overruled, and that the petition for writ of habeas corpus should be dismissed for the reasons stated in the magistrate judge's findings and conclusions and as set forth here. Davis objects to the magistrate judge's application to him of the exhaustion requirement. The magistrate judge was correct to apply to this petition under 28 U.S.C. § 2241, the judicially crafted exhaustion doctrine. Davis has not recited "special circumstances" to warrant the "derailing of a pending state proceeding."
See Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir.), cert. den'd, 484 U.S. 956 (1987).
Braden v. 30 Judicial Circuit Ct. of Ky., 410 U.S. 484, 493 (1973). In spite of the proof of his efforts to raise claims in the Second Court of Appeals and the Texas Court of Criminal Appeals, petitioner Davis has not shown that he followed the procedure articulated for a pre-conviction application for writ of habeas corpus under Article 11.08 of the Texas Code of Criminal Procedure. See TEX. CODE GRIM. PROC. ANN. art. 11.08 (Vernon 1977); see also Jordan v. State, 54 S.W.3d 783, 786 (Tex.Crim.App. 2001) (holding that one wishing to invoke the trial court's habeas-corpus jurisdiction must follow the procedures set out in Article 11). Although Davis alleges he submitted an application to the trial court along with other pre-trial motions at his initial appearance in January 2003, at that time he was challenging the actions of another attorney, and the court then appointed him new counsel.
Also, according to staff contact with the court coordinator of the 372nd Judicial District Court, Tarrant County, Texas, Davis's cases, numbered 0862558D and 0862559D, are specially set for a pre-trial hearing on October 30 and for trial on November 10.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Petitioner's Petition for Writ of Habeas Corpus be, and is hereby, DISMISSED WITHOUT PREJUDICE.
It is further ORDERED that the clerk of the Court shall transmit a copy of this order to Davis by certified mail, return receipt requested.