Opinion
CIVIL ACTION NO. 4:03-CV-155-A
May 22, 2003
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 under 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 Rocklynn E. Hogg, TDCJ-ID #654530, is in custody of the Texas Department of Criminal Justice, Institutional Division and is presently incarcerated in the Clements Unit in Amarillo, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On April 15, 1993, a jury convicted Hogg of aggravated assault with a deadly weapon, and the trial court sentenced him to 25 years' confinement. (State Habeas R. at 48.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Hogg's petition for discretionary review. Hogg v. State, No. 2-93-209-CR (Tex.App.-Fort Worth May 10, 1994, pet. ref'd) (not designated for publication). On June 16, 1997, Hogg filed a state application for writ of habeas corpus challenging his conviction, which the Court of Criminal Appeals denied without written order on the findings of the trial court. Ex parte Hogg, No. 34,656-01 (Tex.Crim.App. Aug. 13, 1997) (not designated for publication). Hogg then filed a federal habeas corpus petition challenging his 1993 conviction, which this court dismissed with prejudice as time-barred. Hogg v. Johnson, No. 4:98-CV-661-Y (N.D. Tex. Aug. 27, 1998), cert. of appealability denied, No. 99-10069 (5th Cir. June 29, 1999). On February 25, 2003, Hogg filed the instant federal habeas corpus petition in this court challenging parole procedures. 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). After Cockrell answered Hogg's petition, Hogg filed a motion to withdraw his petition so he can properly exhaust his state court remedies.
This previous federal petition does not render the instant petition abusive. 28 U.S.C. § 2244(b); Slack v. McDaniel, 529 U.S. 473, 485-86 (2000).
D. ISSUES
Hogg argues that he is subject to involuntary, unconstitutional slavery based on credit given for good time and work time. He further argues that Parole Board arbitrarily and capriciously denies parole based on false and erroneous information with no more than a summary dismissal. Finally, Hogg asserts that inmates have a liberty interest in being released to parole and are denied due process.
Under Texas law, good-time and work-time credits are treated as good-time credits. TEX. GOV'T CODE ANN. § 498.003(d) (Vernon Supp. 2003).
E. EXHAUSTION
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 clam 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 Hogg's claims have not been properly exhausted in the state courts. It is clear that Hogg has not first pursued his state court remedies before seeking relief in this federal court. Hogg has not raised these claims before the state's highest court in an application for habeas corpus relief. Further, to the extent Hogg is arguing that he is personally being denied time-served credit relief, he must properly exhaust state administrative remedies by complying with TDCJ's dispute-resolution procedures. 28 U.S.C. § 2254(b)-(c); TEX. GOV'T CODE ANN. § 501.0081 (Vernon 2003); Lerma v. Estelle, 585 F.2d 12997, 1299 (5th Cir. 1978), cert. denied, 444 U.S. 848 (1979); Ex parte Stokes, 15 S.W.3d 532, 533 (Tex.Crim.App. 2000). Accordingly, dismissal of this federal petition for lack of exhaustion is warranted so that Hogg can fully exhaust his state court remedies and then return to this court after exhaustion has been accomplished.
This court reminds Hogg 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 either the petitioner's conviction becomes final or the factual predicate of the claims could have been discovered through the exercise of due diligence, whichever is later. Id. § 2244(d)(1). 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, Hogg is hereby cautioned to return to this court with all due speed as soon as all state remedies have been exhausted.
II. RECOMMENDATION
Hoggs motion to withdraw the petition should be granted and the petition for writ of habeas corpus should be dismissed without prejudice for failure to exhaust his administrative remedies.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 June 12, 2003. 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); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 12, 2003 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, the 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, is returned to the docket of the United States District Judge.