Opinion
Civil Action No. 4:02-CV-0366-A
August 19, 2002
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:
FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Eligah Darnell, Jr., TDCJ-ID #509489, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Huntsville, Texas.
Respondent Janie Cockrell is the Warden of the Texas Department of Criminal Justice, Institutional Division (TDCJ).
C. PROCEDURAL HISTORY
Pursuant to a plea of guilty entered on March 29, 1989, Darnell was convicted in state court of indecency with a child by contact and sentenced to nine years' confinement (Cause No. 0364461W). (Pet. at 2.) In the instant federal petition, Darnell challenges the revocation of his mandatory supervision on December 20, 2001, and the resultant loss of time credits toward his sentence. Darnell raised the grounds presented herein in a state application for writ of habeas corpus filed on March 6, 2002. E parte Darnell, No. 40,661-07 (Tex.Crim.App. Apr. 3, 2002) (not designated for publication). The Texas Court of Criminal Appeals, on April 3, 2002, however, dismissed the state writ application pursuant to § 501.0081 of the Texas Government Code. Id. at cover 28. Cockrell has filed an answer in this proceeding with attached documentary exhibits supported by a brief, solely arguing that this petition should be dismissed because Darnell has failed to properly exhaust his state remedies as to the claims presented. Darnell, in turn, filed a reply and supplemental reply.
The instant petition is Darnell's eighth petition for writ of habeas corpus filed in federal court pursuant to 28 U.S.C. § 2254. In the first petition filed on December 2, 1999, Civil Action No. 4:99-CV-0993-A, Darnell challenged on substantive grounds his conviction for indecency with a child. The petition was dismissed with prejudice as time-barred on August 14, 2000, and Darnell was denied relief on appeal. See Darnell v. Johnson, No. 00-10968 (5th Cir. Dec. 5, 2000). In the second petition filed on December 20, 1999, Civil Action No. 4:99-CV-1048-A, Darnell challenged the revocation of his mandatory supervision release, but the petition was dismissed without prejudice for failure to exhaust state court remedies on May 16, 2000. While his first petition remained pending, Darnell filed his third petition on June 14, 2000, Civil Action No. 4:00-CV-504-A, claiming that he was improperly denied credits against his sentence for various periods of time spent in jail and in an intermediate sanction facility while awaiting revocation proceedings. The petition was dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244 (d)(1). Darnell v. Johnson, No. 4:00-CV-504-A (N.D. Tex. Feb. 20, 2001). Darnell's appeal was dismissed for want of prosecution on June 15, 2001. Darnell v. Johnson, No. 01-10388 (5th Cir. June 15, 2001). Darnell filed a fourth petition on August 16, 2000, Civil Action No. 4:00-CV-1486-Y, challenging on substantive grounds his conviction for burglary of a habitation. On September 29, 2000, the petition was summarily dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244 (d)(1). The Fifth Circuit denied Darnell's request for a certificate of appealability. Darnell v. Johnson, No. 00-11162 (5th Cir. Feb. 14, 2001). Darnell filed his fifth petition on October 18, 2000, Civil Action No. 4:00-CV-1706-A, challenging on substantive grounds his conviction for unlawful possession of a firearm. The petition was denied on September 17, 2001, and the Fifth Circuit denied Darnell's request for a certificate of appealability. Darnell v. Cockrell, No. 01-11292 (5th Cir. Dec. 18, 2001). On December 4, 2000, Darnell filed his sixth petition, Civil Action No. 4:00-CV-1829-A, challenging his parole revocation of November 18, 1999. The petition was dismissed as moot on September 4, 2001, and his request for a certificate of appealability was denied by the Fifth Circuit. Darnell v. Cockrell, No. 01-11284 (5th Cir. Jan. 2, 2002). In Darnell's seventh petition, filed on April 17, 2002, in Civil Action No. 4:02-CV-564-A, he again challenged on substantive grounds his conviction for indecency with a child. That petition was dismissed as successive on August 1, 2002. Darnell v. Cockrell, No. 4:02-CV-564-A (ND. Tex. Aug. 1, 2002).
Section 501.0081 of the Texas Government code provides:
(a) The department shall develop a system that allows resolution of a complaint by an inmate who alleges that time credited on the inmate's sentence is in error and does not accurately reflect the amount of time-served credit to which the inmate is entitled.
(b) Except as provided by Subsection (c), an inmate may not in an application for a writ of habeas corpus under Article 11.07, code of criminal Procedure, raise as a claim a time-served credit error until:
(1) the inmate receives a written decision issued by the highest authority provided for in the resolution system; or
(2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date on which under the resolution system the inmate first alleges time-served credit error.
(c) Subsection (b) does not apply to an inmate who, according to the department's computations, is within 180 days of the inmate's presumptive parole date, date of release on mandatory supervision, or date of discharge. An inmate described by this subsection may raise a claim of time-served credit error by filing a complaint under the system described by Subsection (a) or, if an application for a writ of habeas corpus is not otherwise barred, by raising the claim in that application.
D. RULE 5 STATEMENT
Cockrell asserts that Darnell has failed to exhaust his state remedies as to the claims presented in this federal petition, and therefore moves for dismissal of the petition. (Resp't Answer at 4-6.)
E. ISSUES
Darnell raises four grounds for relief, alleging that he was entitled to a preliminary probable cause hearing prior to revocation of his mandatory supervision and that his good time and street time credits were unlawfully forfeited upon revocation. (Pet. at 7-8.)
F. 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). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claim 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.
Cockrell asserts that the claims presented in Darnell's federal petition have not been properly exhausted in the state courts because the Texas courts have not had the opportunity to rule on the merits of the claims. (Resp't Answer at 5-6.) This court agrees. The state court's dismissal of Darnell's state writ application pursuant to § 501.0081 was not a ruling on the merits of the claims presented in this federal habeas corpus proceeding. See TEX. GOV'T CODE ANN. § 501.0081.
Because there has been no final disposition of Darnell's state application on the relevant claims, any subsequent application by Darnell raising the grounds now raised would not be considered successive. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4; Ex Parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) ("final disposition" of initial application for writ of habeas corpus, which generally bars subsequent habeas corpus application, occurs when court of criminal appeals addresses merits of all claims raised by applicant, and does not dismiss the application). Thus, if Darnell were to file a later state habeas corpus application, raising the issues presented, it does not appear that it would be denied by the Texas courts on procedural grounds as abusive. Id. Since it cannot be said that the state courts would not review a subsequent state application for writ of habeas corpus, dismissal of this federal petition is appropriate.
Darnell must first pursue his claims, both, through the administrative process, if necessary, and by way of state application for writ of habeas corpus. Only after state habeas corpus proceedings are concluded may he raise his claims in this court by way of a federal petition pursuant to 28 U.S.C. § 2254. Rose v. Lundy, 455 U.S. 509, 518 (1982). Absent a showing that state remedies are inadequate, such showing not having been demonstrated by Darnell, he cannot now proceed in this court in habeas corpus. See 28 U.S.C. § 2254; Fuller v. Florida, 473 F.2d 1383, 1384 (5th Cir. 1973); Frazier v. Jones, 466 F.2d 505, 506 (5th Cir. 1972). 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.
This Court reminds the petitioner that 28 U.S.C. § 2244 (d) imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. 28 U.S.C. § 2244 (d). Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after the petitioner's conviction becomes final. In some instances, the limitations period may run from a date later than the date on which the judgment became final. 28 U.S.C. § 2244 (d)(1)(B)-(D). This case presents such an instance, with § 2244(d)(1)(D) being the applicable subsection (i.e., the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence). The statute of limitations is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244 (d)(2). Thus, Darnell is hereby cautioned to be aware of the time limitation for habeas corpus petitions filed after April 24, 1996.
RECOMMENDATION
It is therefore recommended that this 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.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 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 hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until September 9, 2002. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until September 9, 2002, to serve and file, not merely place in the mail, 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.