Opinion
Civil Action No. 5:O1-CV-338-C
March 29, 2002
ORDER
On this day the Court considered Abel Junior Martimez's ("Petitioner") Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254 on December 27, 2001. Respondent Cockrell has filed an answer alleging that the petition is barred by the applicable statute of limitations or alternatively the petition should be dismissed for failure to exhaust state court remedies. Respondent attached copies of Petitioner's relevant state court records. Petitioner filed his response and objections on March 4, 2002.
Respondent has lawful and valid custody of Petitioner pursuant to three judgments and convictions from the 35 8th Judicial District Court of Ector County, Texas, in Cause Nos. D-17, 853, D-17, 854, and D-17, 855. In each of those cause numbers, Petitioner pleaded guilty to the felony offense of delivery of a controlled substance, to wit, heroin, and was sentenced to 25 years' incarceration in the Texas Department ofCriminal Justice, Institutional Division ("TDCJ-ID"), with the sentences to run concurrently. Petitioner does not complain about his original convictions and sentences; rather, he contends that TDCJ-ID is miscalculating his sentences, denying him credit for time served, using false information to deny him parole, and denying him credit for earned good time.
Petitioner filed the instant petition on December 27, 2001; therefore, his petition is subject to review under the Antiterrorism and Effective Death PenaltyAct 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 Whilehead 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).
Section 501.0081(a) ofthe TeKas Government Code became effective on September 1, 1999, and provided that TDCJ "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." 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 clerk'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 inmates incarcerated in the TDCJ-ID how to challenge their time credits through the administrative procedures.
Although Petitioner argues that he has used "due diligence" in trying to resolve his time credit complaints, the Court finds that he has acknowledged that he did not present his claims for time credit either to the TDCJ 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.