Opinion
No. 3:03-CV-0042-M
January 30, 2003
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 in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This action is a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is an inmate currently incarcerated in the Federal Medical Center (FMC) in Fort Worth, Texas. He names the Warden of that facility, L.E. Fleming, as respondent.
C. Procedural History: On August 2, 2002, petitioner filed an application for habeas relief pursuant to 28 U.S.C. § 2241 in Decker v. Federal Medical Center, Fort Worth, Texas, No. 3:02-CV-1647-M (N.D. Tex.) wherein he challenged his 2002 federal conviction. On September 19, 2002, he filed a second habeas petition in that action, which the District Clerk docketed as an "amended petition," wherein he challenged a parole revocation for his 1989 Oklahoma state conviction. See id. (Am. Pet. filed Sep. 19, 2002). Because the subject of the second habeas/"amended petition" was clearly separate and distinct from the subject of the original petition in No. 3:02-CV-1647-M, the undersigned Magistrate Judge recommended that the second habeas/"amended petition" be severed and opened as a new civil action. Id. (Findings and Recommendation filed Dec. 9, 2002). On January 6, 2003, the District Court accepted the findings and recommendation and opened the instant action. Id. (Order of Jan. 6, 2003).
Petitioner was convicted in 1989 in Oklahoma County District Court. (Pet. at 2.) In 1999, he was transferred to Texas as an "Interstate Out" for completion of his term of parole, which was to be discharged on January 25, 2005. ( Id. at 7; Request for Notification of Release, attached to Pet.) On April 29, 2002, petitioner was sentenced by the United States District Court for the Northern District of Texas to sixteen months imprisonment for being a felon in possession of firearm. See United States v. Decker, No. 3:01-CR-354-D (N.D. Tex.) (Judgment, doc. 24). Petitioner is currently serving that sentence in the Federal Medical Center in Fort Worth. ( See Pet. at 1, 9.)
In July, 2002, petitioner made several requests to determine whether a "blue warrant" had been issued by either the Texas Department of Criminal Justice or the Oklahoma Department of Corrections. ( See Attachments to Pet.) Prison authorities responded that Dallas County had filed a detainer against petitioner, Oklahoma had not filed a detainer, and the Texas Department of Criminal Justice had not responded. ( See id.) On August 14, 2002, the Oklahoma Department of Corrections requested that the FMC in Fort Worth provide it with the petitioner's projected release date. (Request for Notification of Release, attached to Pet.) The request specifically stated that it was not a detainer/hold. ( Id.) Petitioner's parole has not yet been revoked. (Pet. ¶ 13.)
A "blue warrant" is an arrest warrant issued when a parolee is suspected of violating the conditions of his parole. TEX. GOV'T CODE ANN. § 508.252 (Vernon Supp. 2002); Franklin v. Kyle, 899 S.W.2d 405, 406 n. 1 (Tex.App.-Waco 1995, no pet.).
D. Substantive Claims: Petitioner raises three claims. First, he claims that he was denied contact with his Parole Officer after his federal arrest on November 30, 2001. (Pet. at 7.) Second, he claims that a "Blue Warrant" was issued in April 2002, but "they say no warrant was issued." ( Id.) Third, he claims that he was "release[d] from Oklahoma to Texas on a interstate compact parole" in 1999. ( Id. at 7-8.)
II. RELIEF UNDER § 2254
Section 2254(a) of Title 28 of the United States Code directs the courts to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Although petitioner is in the physical custody of the federal prison system, he also remains "in custody" under the Oklahoma judgment and sentence for purposes of 28 U.S.C. § 2254, because he has not completed his term of parole for that conviction or had his parole revoked. See Fox v. Dutton, 406 F.2d 123, 123 (5th Cir. 1968) (holding that "[a] state prisoner on parole is still `in custody' so as to qualify for federal habeas relief'). Thus, the Court may properly consider petitioner's claims under § 2254.
A. Exhaustion
As an initial matter, the Court examines whether federal petitioners have exhausted their state remedies prior to filing their federal petition for writ of habeas corpus under 28 U.S.C. § 2254. A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). To exhaust in accordance with § 2254, a petitioner must fairly present the factual and legal basis of any claim to the highest available state court for review prior to raising it in federal court. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982).
In this case, petitioner admits that he has not presented his claims to any state court. (Pet. at ¶ 14). A federal district court may raise the lack of exhaustion sua sponte. Shute v. State, 117 F.3d 233, 237 (5th Cir. 1997). It is well-settled that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982).
However, it is also well-settled that the courts can deny the federal petition on the merits, notwithstanding a failure to exhaust available state remedies. See 28 U.S.C. § 2254(b)(2). Moreover, a "dismissal of a nonmeritorious petition under Rule 4 [of the Rules Governing Section 2254 Cases in the United States District Courts] pretermits consideration of the issue of nonexhaustion." Granberry v. Greer, 481 U.S. 129, 135 (1987). As discussed below, the Court should summarily dismiss the instant federal petition on the merits rather than dismiss it without prejudice for a lack of exhaustion. When "it is perfectly clear that the applicant does not raise even a colorable federal claim, the interests of the petitioner, the warden, the state attorney general, the state courts, and the federal courts will all be well served" by the district court's summary dismissal of the petition under Rule 4. Id. at 135 n. 7. Courts may appropriately "dispose of nonmeritorious petitions without reaching the nonexhaustion issue." Id. B. Summary Dismissal on the Merits Pursuant to Rule 4
Federal habeas relief cannot be had "absent the allegation by a [petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995).
The district court has the power under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. This power is rooted in the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting Rule 4 Advisory committee Notes). Such examination may occur even before deciding whether the petitioner has exhausted his state remedies. See Granberry v. Greer, 481 U.S. 129, 135 n. 7 (1987).
In this instance, petitioner's claims do not allege deprivation of constitutional or federal rights. A state is not constitutionally required to issue a "Blue Warrant" subsequent to a parolee's arrest. See Russo v. Johnson, 129 F. Supp.2d 1012, 1019-20 (S.D. Tex. 2001) (citing Moody v. Daggett, 429 U.S. 78, 87 (1976)). "The Constitution does not mandate that a parole violation warrant be executed prior to the completion of a subsequent sentence, although such deferral may result in the denial of sentence credit." Id. at 1019 (quoting Moody, 429 U.S. at 84). Thus, parole authorities may defer a final decision on parole revocation until expiration of the subsequent sentence. Id. at 1019-20. With regard to petitioner's other two claims, the Court is unable to find any authority supporting the propositions that denial of contact with a state parole officer after an arrest on federal charges or release of a prisoner from parole in one state to another constitute violations of the Constitution, treaties, or laws of the United States.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Because the specific claims raised by petitioner are not cognizable under § 2254, the Court should summarily dismiss this action under Rule 4.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the District Court summarily DISMISS petitioner's application for habeas corpus relief, brought pursuant to 28 U.S.C. § 2254.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
ORDER PERMITING PROCEEDING IN THE DISTRICT COURT AND SPECIFYING FURTHER ACTION TO BE TAKEN BY THE CLERK
Before the Court is an Application to Proceed In Forma Pauperis (doc. 2). The Court GRANTS the application. Pursuant to the provision of 28 U.S.C. § 1915, permission is hereby granted for the above named petitioner to proceed in forma pauperis in this Court until judgment is entered herein.
The pleadings filed herewith shall be styled and numbered as above. The Clerk of the Court shall take the following indicated action:
(X) A copy of this Order shall be mailed to petitioner or his attorney of record. No further process shall issue except upon further order of the Court.
( ) A show cause order has been executed herewith and service shall be made as directed in such order, together with a true copy of this order.
It is further ORDERED that at all times during the pendency of this action, petitioner shall immediately notify the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE TO THE COURT OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date. Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may result in the dismissal of the petition for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).