Opinion
No. 4:04-CV-148-A.
August 16, 2004
ORDER
Came on for consideration the above-captioned action wherein Travis Mark Smith is petitioner and Douglas Dretke, Director, Texas Department of Criminal Justice ("TDCJ"), Correctional Institutions Division is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On July 14, 2004, the United States Magistrate Judge issued his proposed findings, conclusions, and recommendation, and ordered that the parties file objections, if any, thereto by August 5, 2004. On July 28, 2004, petitioner filed his written objections. Respondent has not made any further response. In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the court makes a de novo determination of those portions of the proposed findings or recommendations to which specific objection is made. United States v. Raddatz, 447 U.S. 667 (1980). The court is not addressing any nonspecific objections or any frivolous or conclusory objections. Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
Petitioner's mandatory supervision was revoked by the Texas Board of Pardons and Paroles on May 30, 2002, causing his good and work time credits to be forfeited. Subsequently, petitioner filed five state applications for writ of habeas corpus challenging each of his five convictions on substantive grounds. Each of the five applications was denied. On November 3, 2003, petitioner filed another habeas application that challenged the forfeiture of his good and work time credits. That application was denied as successive.
The magistrate judge found that petitioner was procedurally barred from bringing his claims because his only relevant state habeas application was procedurally defaulted by the Texas Court of Criminal Appeals. As stated above, petitioner's most recent state habeas application was dismissed as successive under article 11.07, § 4 of the Texas Code of Criminal Procedure. That provision is a procedural rule that provides an adequate and independent ground for the dismissal of petitioner's state habeas application, and thus precludes federal habeas relief. See Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). Petitioner may overcome this bar by showing cause for failing to raise his time resolution claim in his previous state habeas applications and actual prejudice as a result of the alleged violation of federal law. See id. at 524. The magistrate judge concluded that petitioner failed to show such cause.
Petitioner objects to the magistrate judge's conclusion and argues that his time credit resolution claims could not have been brought because he was required to receive a written decision on such claims from TDCJ before he could bring them in a state habeas application. See TEX. GOV'T CODE ANN. § 501.0081(b)(1). He argues that he did not receive notice of the resolution of his time dispute claim until late August 2003 — after all of his five habeas applications were filed. Petitioner states that:
the record does reflect that the TDCJ Time Credit Resolution did answer the two resolutions on February 27, 2003, and August 1, 2003. These also were not given to me by direct mail; thus they were not available and nor had petitioner received written decision in the August 1, 2003 until the end of August 2003, via truck mail within the institution.
Pet.'s Obj. at 7 (original emphasis omitted). Notably, petitioner does not dispute that he timely received a decision from the TDCJ with respect to his February 27, 2003, time credit grievance. This decision is dated February 27, 2003 — nearly a month before he filed the first of his five state habeas applications. Therefore, petitioner has failed to show cause, and his petition is barred from federal habeas review. Accordingly,
Petitioner's argument is further undermined by the fact that there is no bar to petitioner bringing his time credit claim in a state habeas application if he has not received a written decision by the 180th day after he first alleges the time credit error. See TEX. GOV'T CODE ANN. § 501.0081(b)(2). Here, the record shows that petitioner first alleged his time credit error on or before July 8, 2002. Thus, even if he had not received a written decision as claimed, he nevertheless could have brought his claim in the first of his five state habeas applications filed on June 23, 2003.
The court accepts the findings, conclusions and recommendation of the magistrate judge and ORDERS that the petition in this action be, and is hereby, denied.