Opinion
CIVIL ACTION NO. 4:02-CV-666-Y
October 31, 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:
I. 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 Chadrick S. Ford, TDCJ-ID #772155, is incarcerated in the Clements Unit of the Texas Department of Criminal Justice, Institutional Division in Amarillo, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HiSTORY
On December 16, 1996, Ford was convicted of murder and three counts of attempted murder. (Tr. at 81-82.) A jury assessed punishment at life confinement for the murder conviction and 20 years' confinement for each of the attempted-murder convictions. ( Id. at 82.) The Second District Court of Appeals reversed the convictions and granted Ford a new trial because the trial court had erroneously denied Ford's requested jury shuffle. Ford v. State, 977 S.W.2d 824, 829 (Tex.App.-Fort Worth 1998) (op. on PDR). On May 1, 2002, the Texas Court of Criminal Appeals granted the State's petition for discretionary review, reversed the court of appeals by holding that the error was harmless, and affirmed the trial court's judgment. Ford v. State, 73 S.W.3d 923, 926 (Tex.Crim.App. 2002). Ford did not file a petition for certiorari with the United States Supreme Court or an application for habeas corpus relief with the Court of Criminal Appeals.
On July 28, 2002, Ford filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, Fort Worth Division, again challenging the denial of his requested jury shuffle and raising for the first time a complaint that the indictment did not grant the trial court subject-matter jurisdiction over his case. (Federal Pet. at 7-8.) This court entered an order on August 20, 2002, directing Cockrell to file a preliminary response to Ford's petition addressing whether it is barred by the statute of limitations. On September 18, 2002, Cockrell filed an answer and argued that Ford's jury-shuffle allegation is not cognizable on federal habeas corpus and that his indictment claim is unexhausted. (Resp't Answer at 5-6.) On October 15, 2002, Ford filed with this court a motion seeking to have his petition held in abeyance while he returned to the state courts to exhaust his "claim(s)." (Pet'r Mot. for Abeyance at 2.)
D. DISCUSSION
Issues raised in a federal habeas corpus petition must have been fairly presented to the state courts and thereby exhausted. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). An applicant's federal writ of habeas corpus shall not be granted unless the applicant exhausted his state court remedies. 28 U.S.C. § 2254 (b). A claim must be presented to the highest court of the state to satisfy the exhaustion-of-state-court-remedies requirement. O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999); Richardson v. Procunier, 762 F.2d 429, 430 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). A Texas state 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 on direct appeal or a state habeas corpus application. Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432; see also Stones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995) (exhaustion of state remedies may be accomplished either directly or collaterally); Lowe v. Scott, 48 F.3d 873, 875 (5th Cir.) (noting that a petitioner who seeks to pursue an issue that he failed to raise on direct appeal must use available state collateral procedures to satisfy the exhaustion requirement), cert. denied, 515 U.S. 1123 (1995). A claim is fairly presented only if the petitioner relies upon identical facts and legal theories in both the state court proceeding and the action for federal habeas corpus relief. Picard v. Conner, 404 U.S. 270, 278 (1971).
Cockrell correctly asserts that Ford's indictment claim has not been properly exhausted in the state courts. Generally, a federal habeas corpus petition that contains both exhausted claims and unexhausted claims, i.e., a mixed petition, should be dismissed to allow the petitioner to return to the state forum to present his unexhausted claim or claims. Ford does not seek dismissal but, instead, requests a stay of these federal habeas corpus proceedings. This court has the discretion to either abate or dismiss a federal habeas action pending resolution of state habeas proceedings. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). Abatement of this proceeding is not warranted in this case, however. In order to stay federal proceedings and hold a habeas petition in abeyance pending resolution of state court proceedings, there must be exceptional or unusual circumstances. Tolbert v. Cockrell, No. 4:01-CV-130-Y, 2001 WL 1516744, at *6 (N.D.Tex. Nov. 7, 2001). Ford has not alleged any unusual or exceptional circumstances that would warrant abatement. E.g., Rogers v. Cockrell, No. 3:02-CV-105-H, 2002 WL 1106455, at *3.4 (ND. Tex. Sept. 18, 2002). Further, the current practice of the federal courts does not support the proposition that abatement is an acceptable substitute for dismissal. Graham v. Johnson, 168 F.3d 762, 778 (5th Cir. 1999), cert. denied, 529 U.S. 1097 (2000).
The total exhaustion rule of Rose and its progeny is no longer binding under the federal habeas corpus statutes. The law now provides that an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. Under this provision, a federal court in its discretion may review on the merits a habeas corpus application containing unexhausted claims. Because this authority is discretionary only, a federal court is not required to exercise this new prerogative and may still defer to the state courts where state consideration of an unexhausted claim would be appropriate. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).
Accordingly, dismissal of this federal petition for lack of exhaustion is warranted so that Ford can fully exhaust his state court remedies and then return to this court after exhaustion has been accomplished. This court reminds Ford that the habeas corpus statute 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. Id. § 2244(d)(1). In this case, it appears that the limitations period began to run on July 30, 2002 — 90 days after the Court of Criminal Appeals affirmed the trial court's judgment. Flanagan v. Johnson, 154 F.3d 196, 197, 199 (5th Cir. 1998). 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, Ford is hereby cautioned to return to this court with all due speed as soon as all state remedies have been exhausted.
II. RECOMMENDATION
It is therefore recommended that Ford's "Motion for Abeyance" be denied and that Ford's petition be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar which 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 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, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until November 21, 2002. Failure to file written objections within the specified time 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. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Ford, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Pursuant to 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until November 21, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations. 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 recommendations, be and hereby is returned to the docket of the United States District Judge.