Opinion
3:03-CV-1778-H
January 12, 2004
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 District Court in implementation thereof, 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 Case: This is a petition for habeas corpus relief brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Allred Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-CID) in Iowa Park, Texas. Respondent is the Director of TDCJ-CID. The court has issued process to Respondent in this case.
Statement of the Case: A jury convicted Petitioner of murder in the 282nd District Court of Dallas County, Texas. Punishment was assessed at thirty-five years imprisonment. On March 15, 2001, the Fifth District Court of Appeals affirmed Petitioner's conviction and sentence. Brewster v. State, No. 05-00-515-CR, slip op. at 1 (Tex.App. — Dallas 2001). The Texas Court of Criminal Appeals refused his petition for discretionary review on October 24, 2001. Brewster v. State, PDR No. 1030-01.
Subsequently on February 1, 2002, Petitioner filed a state application for writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure. (Petition ¶ 11). This application is presently pending.
In his federal petition, filed on August 8, 2003, Petitioner challenges the sufficiency of the evidence.
In response to this court's order to show cause, Respondent filed an answer along with the state court record. He confirms that Petitioner's art. 11.07 application is still pending before the trial court and that it has yet to be forwarded to or adjudicated by the Texas Court of Criminal Appeals. (Respondent's Mot. to Dism. at 2 and Exh. B thereto). He thus seeks dismissal of the petition for failure to exhaust state court remedies. (Id.). Alternatively, he asserts the petition should be denied on the merits.
Contemporaneously with the filing of Respondent's Answer, Petitioner filed a motion for leave to file writ of mandamus in the Court of Criminal Appeals in connection with his art. 11.07 application. He subsequently filed a response and objection to Respondent's answer, In his motion for leave to file, Petitioner requests "leave to properly exhaust all state remedies including writ of mandamus in order to prevent any procedural bars from the court." (Petitioner's Mot. for Leave to File Petition for Writ of Mandamus at 1-2). He also requests an "acknowledgment [that the pendency of his state-court proceedings, including the petition for writ of mandamus, will cause] continuous tolling" of the limitation period." ( Id.). Findings and Conclusions: It is well settled that a state prisoner must exhaust all available state court habeas corpus remedies before a federal court will consider the merits of his claims. 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 (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).
When state proceedings are pending, as in this case, the district court has the discretion to abate or dismiss a federal habeas action pending resolution of state habeas proceedings. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998).
In the present case the petition should be dismissed without prejudice for failure to exhaust state remedies. Brewster's murder conviction did not become final until January 22, 2002, the last date on which he could have filed a petition for writ of certiorari in the United States Supreme Court. See Sup.Ct. R. 13; Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 1077 n. 3 (2003); United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000); Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998).
Brewster filed his art. 11.07 application in the convicting court on February 12, 2002, at which time less than thirty days of the one-year limitation period had expired. A hearing was held on September 27, 2002, in the state district court, but at present it does not appear that the trial court has filed proposed findings of fact or conclusions of law. Therefore, the Texas Court of Criminal Appeals has not yet ruled on his application. RECOMMENDATION:
28 U.S.C. § 2244(d)(2) tolls the running of the limitation period during the pendency of a State post-conviction attack on a criminal conviction.
Brewster has also filed in this action a motion for leave to file a petition for writ of mandamus in the Texas Court of Criminal Appeals. Whether such a motion should or should not be granted is a matter over which this court has no jurisdiction. Rather such a motion should be filed in either the convicting court or in the Court of Criminal Appeals as may be appropriate under Texas state procedural law.
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be dismissed without prejudice for failure to exhaust state court remedies.
The one-year statute of limitations with its statutory tolling provisions, see 28 U.S.C. § 2244(d), will be applicable to any subsequent petition which Petitioner may file in this court.
A copy of this recommendation shall be mailed to Petitioner and 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 toDouglass 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.