Opinion
Civil Action No. 1:02-CV-042-C
March 20, 2002
ORDER
On this day the Court considered Charles W. Green's ("Green") Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254 on February 28, 2002. Although Respondent Cockrell has not filed an answer, the Court has reviewed Green's petition and his answers to the Court's questionnaire and finds that his Petition for Writ of Habeas Corpus should be dismissed. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (stating that the district court may summarily dismiss the petition "if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to any relief in the district court"). See also Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (stating that the district court has the power to screen out frivolous motions and eliminate the burden that would fall on the respondent to file an unnecessary answer).
Petitioner filed the instant petition on February 28, 2002; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (determining that AEDPA applies to noncapital habeas petitions filed after April 24, 1996, the effective date of the statute); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997) (holding that the relevant date for determining applicability of the AEDPA to habeas corpus petitions is the date the actual petition is filed). Under 28 U.S.C. § 2254(b)(1), as amended by the AEDPA, a state prisoner may not obtain federal habeas relief until he has exhausted the remedies available in the state courts; or he demonstrates the absence of state court remedies or circumstances rendering the state court remedies ineffective. See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) ("A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief.").
"The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court." Id. The federal habeas petitioner "need not spell out each syllable of the claim before the state court to satisfy the exhaustion requirement," but he must demonstrate that his federal claim is the "substantial equivalent" of the state claim. Id. The highest state court in Texas for criminal matters is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). A habeas petitioner has not exhausted his state remedies if he has the right to raise the question(s) by any available procedure under state law. Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
Green complains in the instant petition that the Texas Department of Criminal Justice, Institutional Division and the Board of Pardons and Paroles are not properly calculating his "cumulative" sentences and giving him credit for time served on his sentences. He clearly advises the Court that he has neither a state habeas application nor demonstrated that he has exhausted the TDCJ-ID administrative procedures for contesting the time credited to his sentence.
Section 501.0081(a) of the Texas Government Code became effective on September 1, 1999, and provided that TDCJ "shall develop a system that allows resolution of a complaint by an imitate who alleges that time credited on the inmate's sentence is in error and does not accurately reflect the amount of time-served credit to which the inmate is entitled." The statutory notes accompanying § 501.0081 state that the section is not applicable to any claims for credit made prior to January 1, 2000 See Ex parte Stokes, 15 S.W.3d 532, 533 (Tex.Crim.App. 2000) ("All persons seeking time credit relief in an application filed pursuant to Art. 11.07, § 3, filed in the district cleric's office on or after January 1, 2000, must show that a written decision has been obtained [from the office of time credit resolution for the Texas Department of Criminal Justice] or that he is within 180 days of release according to current department records, or must allege that he sought resolution of his credit complaint more than 180 days before the application was filed."). The Texas Department of Criminal Justice issued an Administrative Directive on June 9, 2000, that told imitates incarcerated in the TDCJ-ID) how to challenge their time credits through the administrative procedures.
The Court finds that Petitioner clearly concedes that he has not presented his claim for time credit either to the ma or the Texas Court of Criminal Appeals and thus has not exhausted his state court remedies.
It is. therefore, ORDERED that Petitioner's Petition for Writ of Habeas Corpus is dismissed without prejudice to his right to pursue his state court remedies.
Any pending motions are denied.