Opinion
Civil Action No. 4:04-CV-0910-A.
April 7, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Eligah Darnell, Jr., CID # 0274245 and TDCJ #509489, is in custody of the Tarrant County Sheriff's Office, Tarrant County Justice Center, Fort Worth, Texas.
Respondent Dee Anderson is the Sheriff of Tarrant County, Texas.
C. FACTUAL AND PROCEDURAL HISTORY
Darnell is currently serving a nine-year sentence for a 1989 conviction for indecency with a child out of Tarrant County, Texas. (Petition at 3; Resp't Exhibit B) Apparently, he has been released on one or more occasions to mandatory supervision and/or parole. (Pet'r Memorandum in Support at 1-9) Darnell asserts that in February 2004, while on release, he was arrested for failing to register as a sex offender. ( Id. at 1) As a result of the new charge, a parole revocation warrant was issued, and his parole was subsequently revoked. ( Id.) Thereafter, Darnell attempted to file at least two state habeas applications, Application Nos. 40,661-10 and 40,661-16, challenging the revocation and resultant loss of time credits, both of which were returned by the Texas Court of Criminal Appeals for noncompliance with Rule 73.2 of the Texas Rules of Appellate Procedure on August 25, 2004 and November 24, 2004, respectively. See TEX. R. APP. P. 73.2. On December 8, 2004, Darnell filed the instant federal petition for writ of habeas corpus challenging his parole revocation and loss of street time. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (providing pro se habeas petition filed when petition is delivered to prison authorities for mailing).
In addition to the documentation provided by the parties, this information was verified through the Texas Court of Criminal Appeals's website, available at http://www.cca.courts.state.tx.us.
Rule 73.2 provides:
The clerk of the convicting court will not file an application that is not on the form prescribed by the Court of Criminal Appeals, and will return the application to the person who filed it, with a copy of the official form. The clerk of the Court of Criminal Appeals may, without filing an application that does not comply with this rule, return it to the clerk of the convicting court, with a notation of the defect, and the clerk of the convicting court will return the application to the person who filed it, with a copy of the official form.
D. RULE 5 STATEMENT
Anderson maintains that Darnell's claims have not been properly exhausted in the state courts as required by 28 U.S.C. § 2254(b) and (c), and he seeks dismissal of the petition on exhaustion grounds or, in the alternative, denial of the petition on the merits. (Resp't Answer at 2-6)
E. EXHAUSTION OF REMEDIES IN STATE COURT
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1), (c); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). A Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review or, as in this instance, a state habeas corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2005); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998); Bd. of Pardons Paroles v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 484 (Tex.Crim.App. 1995). This requires that the state court be given a fair opportunity to pass on the claims, which in turn requires that the applicant present his claims in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
The terms of 28 U.S.C. § 2254(b) and (c) provide in pertinent part as follows:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
. . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The record reflects that Darnell has not exhausted his state court remedies in a procedurally correct manner with respect to the claims presented. Because the state court has not been afforded a fair opportunity to consider the merits of Darnell's claims, the claims are unexhausted for purposes of federal habeas review. He must first pursue his state habeas corpus remedies, in addition to any applicable administrative remedies, before seeking relief under § 2254. Absent a showing that state remedies are inadequate, such showing not having been demonstrated by Darnell, he cannot now proceed in federal court in habeas corpus. Accordingly, dismissal of this federal habeas corpus proceeding for lack of exhaustion is warranted so that Darnell can fully exhaust his state court remedies and then return to this court, if he so desires, after exhaustion has been properly and fully accomplished.
As to Darnell's time credit claim, it may be necessary for him to also avail himself of the administrative review process set forth in § 501.0081 of the Texas Government Code. TEX. GOV'T CODE ANN. § 501.0081 (Vernon Supp. 2004).
Darnell argues that it would be futile for him to resort to state processes, which do not afford him a swift remedy as required by the state and federal constitutions, when he has already attempted to do so to no avail. His inability or refusal to comply with the state court's form requirements, however, do not render the state remedies ineffective. See 28 U.S.C. § 2254(b)(1)(B). Darnell's previous state applications were not properly filed due to his own actions of filing deficient documents, rather than the absence or ineffectiveness of such state processes.
28 U.S.C. § 2244(d) imposes a one-year statute of limitations for filing habeas corpus petitions in federal court, subject to any applicable tolling. See 28 U.S.C. § 2244(d)(1)-(2).
II. RECOMMENDATION
It is therefore recommended that Darnell's petition for writ of habeas corpus be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar that may apply.III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until April 28, 2005. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 28, 2005, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.