Opinion
3:04-CV-1034-D.
August 10, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a habeas corpus action brought pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Polunsky Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) in Livingston, Texas. Respondent is the Director of TDCJ-CID. The court has not issued process in this case. However, on July 12, 2004, the magistrate judge issued a questionnaire to Petitioner, who filed his answers on August 2, 2004.
Statement of Case: Following his plea of not guilty, Petitioner was convicted of rape in the Second Judicial District Court of Dallas County, Texas, Cause No. F81-11424-PT. (Petition (Pet.) at 2). On January 7, 1982, punishment was assessed at ninety-nine years in TDCJ-CID. (Id.). Petitioner was released on parole on January 16, 1990. (Memorandum of Law, attached to Pet. at 2). He remained on parole until September 2, 2002, when he was arrested pursuant to a blue warrant. (Id.). His parole was subsequently revoked on November 14, 2002, and he was recommitted to TDCJ-CID. (Id.). As part of the revocation proceedings, the Texas Board of Pardons and Parole forfeited good-time credits earned prior to Petitioner's release on parole, and refused to give him credit for the time he served on parole — i.e., street-time or flat time credits. (Id.).
Following his parole revocation, Petitioner twice filed a state application for writ of habeas corpus pursuant to art. 11.07, challenging the forfeiture of his good-time and street-time credits. Ex parte John Carol Hill, Nos. 17,026-08 and 17,026-09. He filed his applications on August 8 and October 17, 2003, respectively. (Answer to Questions 1 and 4 of the Magistrate Judge's Questionnaire). On December 17, 2003, the Texas Court of Criminal Appeals dismissed the first application for non-compliance and returned the same to Petitioner. See Ex parte John Carol Hill, No. 17,026-08, www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=222225 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals July 7, 2004). On March 24, 2004, The Court of Criminal Appeals dismissed the second application pursuant to Tex. Gov't Code § 501.0081(b). See Ex parte John Carol Hill, No. 17,026-09, www.cca.courts.state.tx.us/opinions/Case.asp?FilingID=224345 (Docket Sheet information generated from the Texas Judiciary Online — Court of Criminal Appeals July 7, 2004).
In answer to the questionnaire, Petitioner asserts he twice presented his time-credit claim to TDCJ. On September 27, 2003, he sent a letter to TDCJ Records Office in Huntsville, Texas. (See Attachment to Answers to Questionnaire and Answer to Question 2). Thereafter on March 3, 2004, he submitted a formal request for Time Credit Dispute Resolution. (Id.). As of the filing of the answers to the Questionnaire, Petitioner had not received a response to either request. (Answer to Question 2).
In the instant petition, filed on May 13, 2004. Petitioner challenges the forfeiture of good-time and street-time credits as violative of his due process rights.
. Findings and Conclusions: To maintain a habeas corpus action a Petitioner must exhaust his state remedies. See 28 U.S.C. § 2254(b) and (c). The exhaustion requirement is designed to "protect the state court's role in the enforcement of federal law and prevent the disruption of state judicial proceedings."Rose v. Lundy, 455 U.S. 509, 518 (1982). In order to exhaust, a petitioner must "fairly present" all of his claims to the highest state court for review. Shute v. State of Texas, 117 F.3d 233, 237 (5th Cir. 1997); Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985). The normal procedural mechanism for presenting disputes over time credits when the time for direct appeal has passed has historically been by a post-conviction petition for writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004), and more recently, by resorting first to the procedure outlined in Tex. Gov't Code Ann. § 501.0081 (Vernon Supp. 2004) before filing the state habeas application. See Ex parte Shepherd, 65 S.W.3d 673, 674-75 (Tex.Crim.App. 2002) (concurring opinion) (noting inmate may apply for a writ of habeas corpus under Article 11.07 after inmate receives written decision issued by highest authority provided for in the resolution system).
Section 501.0081 provides as follows:
(a) The department shall develop a system that allows resolution of a complaint by an inmate 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.
(b) Except as provided by Subsection (c), an inmate may not in an application for a writ of habeas corpus under Article 11.07, Code of Criminal Procedure, raise as a claim a time-served credit error until:
(1) the inmate receives a written decision issued by the highest authority provided for in the resolution system; or
(2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date on which under the resolution system the inmate first alleges the time-served credit error.
(c) Subsection (b) does not apply to an inmate who, according to the department's computations, is within 180 days of the inmate's presumptive parole date, date of release on mandatory supervision, or date of discharge. An inmate described by this subsection may raise a claim of time-served credit error by filing a complaint under the system described by Subsection (a) or, if an application for a writ of habeas corpus is not otherwise barred, by raising the claim in that application. Tex. Gov't Code Ann. § 501.0081 (Vernon Supp. 2004).
As reflected in the answers to the questionnaire, Petitioner has not exhausted his state court remedies. His first state habeas application was returned as noncomplying, and his second application was dismissed for failing first to resolve the claim administratively pursuant to Tex. Gov't Code § 501.0081. While Petitioner claims to have not received a response to the time credit dispute resolution claim submitted on March 3, 2004, the 180-day time period has yet to expire. See Id., § 501.0081(b). As such his petition for a writ of habeas corpus should be dismissed without prejudice for failure to exhaust state court remedies. See 28 U.S.C. § 2254(b). RECOMMENDATION:
The court cautions Petitioner that the 1996 amendment to the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. See 28 U.S.C. § 2244(d).
For the foregoing reasons, it is recommended that the District Court dismiss the petition for writ of habeas corpus without prejudice for failure to exhaust state habeas corpus remedies.See 28 U.S.C. § 2254(b).
A copy of this recommendation will be mailed to Petitioner John Carol Hill, #330076, TDCJ, Polunsky Unit, 3872 FM 350 South, Livingston, Texas 77351.