Opinion
3:00-CV-2051-H.
March 26, 2001.
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, the subject cause has previously 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 Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2241, et seq. by an inmate confined in the Stevenson Unit of the Texas Department of Criminal Justice (TDCJ) in Cuero, Texas. On September 25, 2000, a questionnaire was served on Petitioner, his answers to which were filed on October 6, 2000. Thereafter, process was issued. On November 29, 2000, Respondent filed a motion to dismiss the petition for failure to exhaust state remedies. Petitioner did not file a response. On January 8, 2001, the state court papers related to the instant petition were received by this Court.
Statement of the Case: On January 11, 1994, in the 292nd Judicial District Court of Dallas County, Texas, Petitioner pled guilty to the charge of unauthorized use of a vehicle in cause no. F-9368482-TV. Ex parte McCullough, App. No. 46,334-01, pp. 49-50. He was convicted and his sentence was assessed at ten-years confinement. Id. The imposition of Petitioner's sentence was suspended and he was placed on six-years probation. Id. McCullough remained on probation until May 18, 1994 when he pled guilty and was convicted for the offense of burglary of a building and sentenced to eight-years confinement in cause no. F-9450707-HV. Id. at p. 34. His probation was revoked that same day and McCullough was sentenced to eight-years confinement on the earlier vehicle theft conviction with his eight-year sentences to run concurrently. See id. at pp. 34 43. Thereafter, Petitioner was released on parole. He remained on parole release until July 27, 1999 when the Pardons and Parole Division of the Texas Department of Criminal Justice revoked his parole and recommitted him to incarceration. Petition ¶ 13.
Respondent states that McCullough also pled guilty to a charge of burglary of a building in cause no. F-93-42589-HV and, on January 11, 1994, was convicted and sentenced to eight-years confinement which was probated for six-years. The records of this conviction do not appear in the state court records filed by Respondent. The state record index reflects that these records can not be located. Fortunately, the missing records are not necessary for a disposition in this case.
McCullough filed one state application for habeas relief which was denied on August 30, 2000 for failure to exhaust administrative remedies. See Ex parte McCullough, App. No. 46,334-01 at cover. In the case at bar, Petitioner claims (1) that he has wrongfully been denied credit on his sentence for good-time credits and street-time credits, (2) that he signed his parole release certificate under duress, and (3) that he was denied a fair revocation hearing. Petition ¶ 12. Findings and Conclusions: Although 28 U.S.C. § 2241 includes no statutory requirement that a petitioner exhaust state remedies prior to bringing suit in federal court, the case law in this circuit makes it clear that exhaustion of all available state court remedies is a prerequisite to filing a petition for habeas corpus relief in federal court. Dickerson v. State of Louisiana, 816 F.2d 220, 225 (5th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 352 (1987). The exhaustion requirement is "designed to protect the state courts' role in the enforcement of federal law and prevent the disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982). In order to exhaust, a petitioner must fairly present all of his claims to the state's highest court. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985). The exhaustion of state remedies assists the federal courts by developing a factual record, allowing the application of the state's correctional expertise to the prisoner's claims, and hopefully resolving disputed issues without the necessity of federal court intervention. See McKart v. United States, 395 U.S. 185, 193-195, 89 S.Ct. 1657, 1662-63 (1969); Williams v. O'Brien, 792 F.2d 986 (10th Cir. 1986).
Under Texas law, an inmate challenging the calculation of his time served must file a complaint with the office of time credit resolution of the Texas Department of Criminal Justice prior to seeking relief in a state habeas proceeding under article 11.07, Texas Code of Criminal Procedure. Ex parte Stokes, 15 S.W.3d 532 (Tex.Crim.App. 2000). The applicant may proceed with his art. 11.07 application only after receiving a written decision from the TDCJ or after the expiration of 180 days from the date he filed his administrative complaint. Tex. Gov't Code § 501.0081 (Vernon Supp. 2000). An inmate who, according to the TDCJ records, is within 180 days of the date of his release on parole, mandatory supervision or discharge of sentence is not required to exhaust his administrative remedy prior to filing a state application for habeas relief. Id.
In the instant case, Petitioner failed to demonstrate that he has presented his complaint regarding the calculation of his good-time and street-time credits to the TDCJ office of time credit resolution. Moreover, his state habeas application was dismissed for failure to comply with this statutory prerequisite. Thus, it is clear that McCullough has not exhausted his state habeas remedies. Accordingly, his petition should be dismissed.
RECOMMENDATION:
For the foregoing reasons it is recommended that the Petition be dismissed without prejudice for failure to exhaust state remedies.
A copy of this recommendation shall be transmitted to Petitioner and to Counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.