Opinion
3:03-CV-1178-D
January 5, 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 pursuant to 28 U.S.C. § 2254 by an individual challenging the order placing him on deferred adjudication probation.
Parties: According to Respondent's motion to dismiss, Petitioner presently resides in Kingsville, Texas. At the time of filing this action he was incarcerated in the Substance Abuse Felony Punishment Facility (SAFPF) at the Estelle Unit of the Texas Department of Criminal Justice (TDCJ). Petitioner has not submitted a notice of address change since his release from SAFPF as required by this court's June 4, 2003 order.
The petition and motion for leave to proceed in forma pauperis reflect Petitioner was confined at the T.R. Havins Unit of TDCJ, another SAFPF facility, in Brownwood, Texas.
Respondent is Ron Goethals the Director of the Dallas County Community Supervision and Corrections Department. The court has issued process to Respondent in this case. Prior to and after issuing process, the court issued two questionnaires to Petitioner on June 4, and November 4, 2003, respectively. Although Petitioner filed a response to the first questionnaire on July 7, 2003, he has not submitted a response to the supplemental questionnaire. Statement of the Case: On December 1, 2000, Petitioner pled guilty to the offense of aggravated robbery with a deadly weapon in Criminal District Court No. 5 of Dallas County, Texas, Cause No. FOO-29836. (Respondent's Mot. to Dism. filed on Oct. 3, 2003, Exh. 3). The trial court deferred adjudicating the defendant guilty and imposed a ten-year period of community supervision. (Id., Exh. 4). As a condition of his community supervision, Petitioner was required to participate in the SAFPF, a residential drug treatment program operated by TDCJ and the Community Supervision Corrections Department. (Id., Exh. 5). On July 24, 2002, as an alternative to incarceration for probation violation, the trial judge ordered that Petitioner be placed in the SAFPF for no more than one year, and that he participate in a drug/alcohol treatment plan. (Id., Exh. 6). Petitioner participated in the SAFPF program from September 18, 2002, until July 2, 2003, successfully completing the same. (Id.. Exhs. 7 and 8). He was released from SAFPF to the Recovery Campuses of Texas, Transitional Treatment Center (TTC) in Corpus Christi, Texas, where he remained until completion of that program on August 28, 2003. (Id. Exh. 8).
On September 4, 2003, the court dismissed Doug Dretke, Director of the Correctional Institutions Division of TDCJ, and added Ron Goethals as party respondent. The court concluded that Director Dretke did not have custody of Petitioner pursuant to the deferred adjudication order at issue in this case.
In his federal habeas petition, filed on May 27, 2003, Petitioner alleges his guilty plea was involuntary and counsel rendered ineffective assistance during the plea proceeding.
Respondent filed a motion to dismiss for failure to exhaust state remedies on October 3, 2003. Petitioner has not filed objections. Nor has he responded to the supplemental questionnaire filed on November 4, 2003.
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, 430-31 (5th Cir. 1985).
A habeas corpus petitioner who has been granted community supervision may satisfy that requirement by presenting both the factual and legal substance of his claims to the sentencing court in an application for a writ of habeas corpus pursuant to the recently enacted art. 11.072, Texas Code of Criminal Procedure. Alternatively he may file an application for habeas corpus relief in the convicting court pursuant to art. V § 8 of the Texas Constitution. See Rodriguez v. Court of Appeals Eighth Supreme Judicial District, 769 S.W.2d 554, 557 (Tex.Crim.App. 1989) (en bane) (holding that art. V § 8 of the Texas Constitution, combined with art, 11.05 of the Texas Code of Criminal Procedure, confers general jurisdiction in the district courts to issue writs of habeas corpus, even in cases where the district court has no other jurisdiction over the matter in controversy). In the event the district court denies the habeas petition under either art. 11.072 or art. V § 8 of the Texas Constitution, the habeas petitioner has a right to appeal to the Texas appellate courts and to petition the Texas Court of Criminal Appeals for discretionary review.
Petitioner has not satisfied the exhaustion requirement. He has not sought relief in accordance with the procedure set out in art. 11.072 or the Texas Constitution. In response to the magistrate judge's questionnaire, filed on July 7, 2003, Petitioner stated that he filed an art. 11.07 application, which the Texas Court of Criminal Appeals denied on May 15, 2003. (See Answers to Magistrate Judge's Questionnaire filed on July 7, 2003). Respondent has confirmed that Petitioner did not file such an application with the Dallas County District Clerk's Office. (See Respondent's Exh. 9, affidavit of Anne Erwin). Since Petitioner has not sought state habeas relief, his grounds remain unexhausted. Accordingly, the petition for a writ of habeas corpus should be dismissed for failure to exhaust state remedies. RECOMMENDATION:
Due to the lack of clarity in Petitioner's response to the first questionnaire, the court issued a supplemental questionnaire on November 4, 2003, to determine the exact disposition of his purported art. 11.07 application. Petitioner has failed to file timely answers to the supplemental questionnaire.
In light of the failure to exhaust state remedies, the court need not address Respondent's alternative ground of dismissal that the federal petition is barred by the one-year limitation period. While the District Court has long rejected Respondent's limitation argument in the context of deferred adjudication probation, see Cutrer v. Cockrell. No. 3:01cv0841-D, 2002 WL 1398558, at *3 (N.D. Tex. June 26, 2002) (Fitzwater J.) ("order" of deferred adjudication probation is not a "judgment"), a split among the judges in the Northern District of Texas has developed during the last year. Moreover, the Fifth Circuit Court of Appeals is expected to resolve the issue in Foreman v. Cockrell. No. 03-40527.
For the foregoing reasons, it is recommended that the District Court dismiss the petition for a writ of habeas corpus without prejudice for failure to exhaust state court remedies. A copy of this recommendation will be mailed to Petitioner and to counsel for Respondent Ron Goethals.
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 bane), 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.