Opinion
3:01-CV-516-R.
July 3, 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, 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 civil rights complaint pursuant to 42 U.S.C. § 1983. As more fully set out below, the complaint should be construed as a petition for habeas corpus relief.
Parties: Petitioner is currently confined at the Dallas County Jail in Dallas, Texas. Respondent is Vickie Hallman, director of parole supervision. The court has not issued process in this case. However, on June 17, 2001, the magistrate judge issued a questionnaire to Petitioner, who filed his answers on June 14, 2001.
Statement of Case: Petitioner is presently incarcerated on the basis of an aggravated sexual assault charge in Cause No. F-0148256, Criminal Court No. 5, Dallas County, Texas. (Answer to Questions 1 and 2 of the magistrate judge's questionnaire). He is scheduled to go to trial later this year. (Answer to Question 2). In addition to the above charge, Petitioner is being held on the basis of a parole pre-revocation warrant issued on January 22, 2001, by the Pardons and Paroles Division of the Texas Department of Criminal Justice (TDCJ) in Cause No. F-8982060-RL. (Answer to Question 3).
In this action, Petitioner challenges the validity of the above parole pre-revocation warrant. He alleges the parole pre-revocation warrant is not supported by sufficient evidence; the victim has "dropped" the charges in Cause No. F-0148256, and no medical examination was ever performed after the alleged sexual assault. (Answer to Question 3). Because he is illegally held on a parole pre-revocation warrant, he is unable to post-bond in the pending criminal case, No. F-01-48256. (Complaint ¶ V). He, thus, requests the court to rescind the parole pre-revocation warrant, thus permitting him to post bond in No. F-01-48256 and achieve his release from custody. (Complaint ¶ VII).
Petitioner has not challenged the pre-revocation warrant in state court. He has filed, however, the following motions: (1) a motion to suppress his confession; (2) a motion for speedy trial; (3) a motion for evidentiary hearing; (4) a motion to dismiss, or in the alternative, to "quash" indictment; and (5) a nunc pro tunc motion. (Answer to Question 4). The trial court has not ruled on any of the above motions. (Id.).
Findings and Conclusions: Since Petitioner seeks to be released from custody, the initial question in this case is whether his claim is cognizable in this § 1983 action. InPreiser v. Rodriguez, the Supreme Court held that a constitutional challenge by state prisoners to the cancellation of good-time credits that would have entitled them to release should have been brought in a habeas corpus action even though the plaintiffs' claim fell within the literal terms of § 1983. 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973),not followed on other grounds set out in dicta by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Specifically, the Court stated "[w]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser, 411 U.S. at 500, 93 S.Ct. at 1841. See also Heck, 512 U.S. at 481, 114 S.Ct at 2369 ("habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release"). The Fifth Circuit Court of Appeals has also stated that a petition for a writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures. Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam), cert. denied, 516 U.S. 1059 (1996).
In this case, Petitioner requests the court to rescind the parole pre-revocation warrant, thus permitting him to post bond in the pending criminal case. Such a claim is not cognizable under § 1983 because it amounts to nothing more than an attack on the duration of Petitioner's confinement available only in a habeas corpus action. Therefore, the complaint should be construed as a habeas corpus petition.
Petitioner filed a motion for leave to amend on June 21, 2001. It is unnecessary to address this motion since, for the reasons stated below, he has not exhausted available state remedies.
Before proceeding with a federal habeas action, however, a state prisoner must exhaust all available state habeas corpus remedies. 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, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (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). Texas prisoners may satisfy that requirement by presenting the factual and legal substance of each of their claims to the Texas Court of Criminal Appeals in a petition for discretionary review while appealing their state criminal conviction, or in a state writ application filed pursuant to article 11.07, Texas Code of Criminal Procedure.Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998);Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986);Richardson, 762 F.2d at 432; see also Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990).
A review of the pleadings in this case reflects that Petitioner has not satisfied the exhaustion requirement. He has not filed any motion or petition, pursuant to art. 11.07, Texas Code of Criminal Procedure, challenging the issuance of the parole pre-revocation warrant in the convicting court. While Petitioner has filed several motions in his pending criminal case, none of them challenged the validity of the parole pre-revocation warrant. Therefore, the District Court should dismiss the petition without prejudice for failure to exhaust state remedies.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the complaint be construed as a petition for a writ of habeas corpus and that the same be dismissed without prejudice for failure to exhaust state remedies. 28 U.S.C. § 2254(b) and (c).
It is further recommended that the District Court order the Court Clerk to modify the nature of suit and cause on the docket sheet to reflect that this action has been construed as a habeas corpus action.
A copy of this recommendation will be transmitted to Petitioner.
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.