Opinion
CIVIL ACTION NO. 4:03-CV-1420-A
April 8, 2004
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 Christopher Alan Hepner, TDCJ-ID #1133505, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), in Colorado City, Texas.
Respondent Douglas Dretke is the Director of TDCJ-CID.
C. FACTUAL AND PROCEDURAL HISTORY
In September 1997, Hepner was indicted in Fayette County of indecency with a child by contact. (State Habeas R. at 27.) On March 3, 1998, Hepner pleaded guilty to the charged offense in exchange for the state's recommendation that his punishment be assessed at two years' confinement. ( Id. at 32-33.) Thereafter, the trial court admonished Hepner regarding his rights and waivers, accepted his plea, found him guilty of the offense, and assessed his punishment in accordance with the plea agreement. ( Id. at 29-30, 42-43.) Hepner did not appeal his conviction or sentence. (Pet. at 3; State Habeas R. at 3.) Hepner fully discharged his two-year sentence on October 7, 1999, and was released from the custody of TDCJ-CID. (Resp't Answer at Exhibit A.) Thereafter, Hepner was indicted for failure to comply with the state sex offender registration requirements. (Resp't Advisory at Exhibit A.) Pursuant to a guilty plea, he was convicted of the offense on November 1, 2002, and sentenced to two years' confinement, which he is currently serving in TDCJ-CID. ( Id.)By way of the instant petition, Hepner challenges his 1998 conviction for indecency with a child. On August 1, 2003, Hepner filed a state application for writ of habeas corpus raising the issue presented herein, which the Texas Court of Criminal Appeals denied without written order on January 14, 2004. (State Habeas R. at cover) Ex parte Hepner, Application No. 57,011-01. Hepner filed this federal petition for writ of habeas corpus in the United States District Court for the Southern District of Texas, Houston Division, on July 29, 2003, and the action was transferred to this court by order dated November 25, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
In one ground, Hepner contends his guilty plea in the indecency case was "unlawfully induced or not made voluntarily or made without an understanding of the nature of the charge and the consequences of the plea" because he was not informed by the state trial court that he would be required to register as a sex offender. (Pet. at 7 Attachment.)E. RULE 5 STATEMENT
Cockrell believes that Hepner has sufficiently exhausted available state remedies on the specific allegation presented in his federal petition, and does not move to dismiss on this ground. (Resp't Answer at 3-4.)
F. SUBJECT MATTER JURISDICTION
As a preliminary matter, Dretke contends this court lacks jurisdiction to consider Hepner's petition because Hepner is no longer serving his sentence for the underlying criminal conviction. (Resp't Answer at 1-2.) Generally, for this court to have subject matter jurisdiction over a claim under § 2254, the petitioner must be "in custody" pursuant to the underlying conviction the subject of the proceeding. See 28 U.S.C. § 2254(a); Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 394 (2001); Maleng v. Cook, 490 U.S. 488, 492 (1989). Hepner's sentence for the underlying conviction fully expired on October 7, 1999, before the instant petition was filed. (Resp't Answer at Exhibit A.) Thus, Hepner was not in custody under that charge at the time his petition was filed, and the court has no jurisdiction to entertain the petition.
Dretke also contends Hepner's petition is time barred under the federal statute of limitations. 28 U.S.C. § 2241(d). It is not necessary however to address this issue.
It is noted that even if the court had jurisdiction to consider Hepner's petition, he would not prevail on the merits. The requirement that when released from confinement a convicted sex offender register pursuant to the provisions of Chapter 62 of the Texas Code of Criminal Procedure is a collateral consequence of the conviction, and failure to advise a defendant of such a collateral consequence does not render a guilty plea involuntary. See Allen v. Dretke, No. 3:03-CV-2123-R, 2004 WL 691233, at *2 (N.D. Tex. Mar. 30, 2004) (not designated for publication). See, e.g. United States v. Gavilan, 761 F.2d 226, 228-29 (5th Cir. 1985) (ignorance of fact that conviction could result in deportation held not to be a matter on which the court was required to advise the defendant). But see Mitschke v. Texas, — S.W.3d —, 2004 WL 438394 *4-5 (Tex.Crim.App. Mar. 10, 2004) (holding sex offender registration is "direct" consequence of plea, but imposition of it without admonishment does not necessarily render an otherwise voluntary plea involuntary). The fact that the Supreme Court held that sex offender registration laws were not penal in nature provides further support for the proposition that the trial court was not required under the United States Constitution to advise Hepner of the provisions of Chapter 62 at the time he entered his guilty plea. See Smith v. Doe, 538 U.S. 84, 93-94 (2003). Moreover, he cannot show that the Texas Court of Criminal Appeals's rejection of his claim constituted an unreasonable application of federal law. See, e.g., Duke v. Cockrell, 292 F.3d 414, 417 (5th Cir.), cert. denied, 537 U.S. 975 (2002).
II. RECOMMENDATION
Hepner's petition for writ of habeas corpus should be dismissed for lack of jurisdiction.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 29, 2004. 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 29, 2004, 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.