Leasure v. Dretke

Full title: ROBERT ENNARD LEASURE, #747659, Petitioner, v. DOUGLAS DRETKE, Director…

Court: United States District Court, N.D. Texas

Date published: Oct 9, 2003

No. 3:03-CV-1600-N (N.D. Tex. Oct. 9, 2003)

Opinion

No. 3:03-CV-1600-N

October 9, 2003

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636(b), implemented by an Order of the Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows: FINDINGS AND CONCLUSIONS ;

Type Case ; Petitioner has filed a petition for writ of error coram nobis.

Parties : Petitioner is a state prisoner, currently incarcerated in the Texas Department of Criminal Justice-Correctional Institutions Division ("TDCJ-CID"). Respondent is Douglas Dretke, Director of the TDCJ-CID.

Statement of the Case ; Petitioner was convicted of aggravated sexual assault of a child and sentenced to life imprisonment. His conviction was reversed due to ineffective assistance of counsel at sentencing and the case was remanded for a new punishment hearing. Leasure v. State, No. 05-95-01763-CR (Tex.App.-Dallas, Oct. 1, 1997). Upon rehearing, Petitioner received a life sentence and was fined $10,000. He filed a notice of appeal which was later withdrawn. Leasure v. State, No. 05-98-01824-CR (Tex.App. — Dallas, Nov. 19, 1998). Instead, Petitioner collaterally attacked his conviction and sentence in a state application for writ of habeas corpus. The Texas Court of Criminal Appeals denied habeas relief without written order. Ex parte Leasure, No. 40,740-01 (Tex.Crim.App. March 31, 1999).

Petitioner filed three federal habeas corpus petitions pursuant to 28 U.S.C. § 2254. His first petition was dismissed without prejudice for lack of subject matter jurisdiction. Leasure v. Bowles, No. 3:98-CV-1652 (N.D. Tex. Oct. 26, 1998). The second case was dismissed without prejudice for failure to exhaust state remedies. Leasure v. State, 3:98-CV-2604 (N.D. Tex. Dec. 2, 1998). The third case was denied on the merits. Leasure v. Johnson, 3:99-CV-2928-BD (N.D. Tex. June 5, 2000).

Petitioner now files this petition as a petition for writ of error coram nobis. Discussion ;

The extraordinary remedy of coram nobis is appropriate only where the petitioner is no longer in custody but "can demonstrate that he is suffering from civil disabilities as a consequence of the criminal convictions and that the challenged error is of sufficient magnitude to justify extraordinary relief." United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994), quoting United States v. Marcello, 876 F.2d 1147, 1154 (5th Cir. 1989). Coram nobis "should issue to correct only errors which result in a complete miscarriage of justice." Castro, 26 F.3d at 559.

Here, Petitioner has not shown that he is no longer in custody. For that reason alone, relief by way of coram nobis is unavailable. Moreover, "the writ of error coram nobis is not available in federal court to attack state criminal judgments." Sinclair v. State of Louisiana, 679 F.2d 513, 515 (5th Cir. 1982); see also Swaissi v. State, 2001 WL 1148257 at *1 (N.D. Tex. Sept. 18, 2001) (same). RECOMMENDATION :

For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the petition for writ of error coram nobis be dismissed for lack of subject matter jurisdiction.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Petitioner. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).