Opinion
2:01-CV-0132.
December 11, 2001.
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS FOR FAILURE TO EXHAUST STATE COURT REMEDIES
Before this Court is a Petition for a Writ of Habeas Corpus by a Person in State Custody filed March 29, 2001 by petitioner MARVIN GAY JACKSON, a state prisoner currently confined in the Tulia Unit in Swisher County, Texas. Also before this Court is a motion, filed September 21, 2001 by respondent JANIE COCKRELL, to dismiss petitioner's habeas application for failure to exhaust state court remedies.
Although filed of record on March 29, 2001, petitioner's habeas application is deemed filed as of the date he placed his petition in the prison mail system, i.e., March 23, 2001. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998).
Petitioner was convicted January 19, 1993, pursuant to a guilty plea, by the 121st Judicial District Court of Terry County, Texas, for the offense of burglary with intent to commit rape. Petitioner's sentence was probated for a period of ten (10) years, subject to certain conditions. On November 15, 1999, petitioner's probation was revoked and he was sentenced to eight (8) years imprisonment in the Texas Department of Criminal Justice — Institutional Division (TDCJ). Petitioner did not directly appeal the conviction.
In his state habeas petition, JACKSON concedes that he filed no direct appeal. Exparte Jackson, App. No. 48, 653-01, at 3. In his federal writ application however, and his response to respondent's motion to dismiss, petitioner appears to aver that he did directly appeal his conviction. In so doing, petitioner seems to be construing his previously filed state writ application as a direct appeal.
On January 29, 2001, petitioner filed a state habeas application challenging his conviction, specifically, the denial of time credits for time spent on probation. On March 7, 2001, the Texas Court of Criminal Appeals dismissed the state habeas petition for failure to comply with TEX. GOV'T CODE ANN. § 501.0081(b).
I. EXHAUSTION OF STATE COURT REMEDIES
Petitioner filed his federal application after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Consequently, the provisions of the AEDPA apply to this case. As relevant here, the AEDPA provides:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) 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.
(3) . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059 (1989). The doctrine serves "to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203,71 L.Ed.2d 379 (1982).
Under our federal system, the federal and state courts are equally bound to guard and protect rights secured by the Constitution. Because it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, federal courts apply the doctrine of comity, which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.Id. (brackets, internal quotation marks, and citations omitted). To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional claim presented to the state courts be supported by the same factual allegations and legal theories upon which the petitioner bases his federal claims. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Further, in order to satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a petitioner's confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary review.
Additionally, "as of January 1, 2000, inmates are now required to first pursue claims of denial of time credits through a dispute-resolution process within the prison system before seeking relief pursuant to TEX. CODE CRIM. PROC. § 11.07." Sorrells v. Cockrell, No. 4:01-CV-0324-A, 2001 WL 1148962, at *3 (N.D. Tex. Sept. 17, 2001). Specifically the Texas Government Code provides:
§ 501.0081. Dispute Resolution: Time-Served Credits.
(a) The department shall develop a system that allows resolution of a complaint by an inmate who alleges that time credited on the inmate's sentence is in error and does not accurately reflect the amount of time-served credit to which the inmate is entitled.
(b) Except as provided by Subsection (c), an inmate may not in an application for a writ of habeas corpus under Article 11.07, Code of Criminal Procedure, raise as a claim a time-served credit error until:
(1) the inmate receives a written decision issued by the highest authority provided for in the resolution system; or
(2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date on which under the resolution system the inmate first alleges the time-served credit error.
(c) Subsection (b) does not apply to an inmate who, according to the department's computations, is within 180 days of the inmate's presumptive parole date, date of release on mandatory supervision, or date of discharge. An inmate described by this subsection may raise a claim of time-served credit error by filing a complaint under the system described by Subsection (a) or, if an application for a writ of habeas corpus is not otherwise barred, by raising the claim in that application.
In the instant case, as stated supra, petitioner's state habeas petition, filed January 29, 2001, was dismissed as premature by the Texas Court of Criminal Appeals on March 7, 2001 for failing to comply with the above statutory provisions. In his response to respondent's motion to dismiss, petitioner has provided the Court with a copy of a document entitled Time Credit Dispute Resolution wherein it appears he filed with the appropriate authority such document on or about February 1, 2001. Such dispute resolution was decided in favor of the State of Texas on May 23, 2001.
Thus, respondent's motion for dismissal on the ground of failure to exhaust state court remedies, specifically, failure to follow the dispute resolution process, appears to be moot. However, based upon the record, it is opinion of the undersigned that petitioner has still not exhausted his state court remedies. Because the state habeas was dismissed as premature, there was no ruling by the Texas Court of Criminal Appeals on the merits. Sorrells, No. 4:01-CV-0324-A, at *3 (N.D. Tex. Sept. 17, 2001). Therefore, any subsequent claim by petitioner would not be considered successive and dismissal of this federal petition is appropriate. Id. This is true even though petitioner has now concluded the administrative review process. At the time the state application for writ of habeas corpus was dismissed, petitioner had no final written decision in the administrative resolution process and the state habeas application was thus properly dismissed as premature. Id. "[Petitioner] must first pursue any claims regarding the denial of credits towards his sentence by way of state application for writ of habeas corpus. Only after state habeas corpus proceedings are concluded may he attack his confinement in this Court by way of a federal petition pursuant to 28 U.S.C. § 2254." Id. Accordingly, as the record now exists, it is the opinion of the Magistrate Judge that the petition must be dismissed for failure to exhaust.
II. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for Writ of Habeas Corpus by a Person in State Custody filed by petitioner MARVIN GAY JACKSON be DISMISSED WITHOUT PREJUDICE. Petitioner is advised that dismissal without prejudice does not guarantee petitioner that he will be permitted to prosecute any subsequently filed federal habeas application if such is time-barred, nor guarantee application of any "relation back" theory, but merely allows any subsequently filed petition not to be considered as a second or successive petition.
III. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence card.
Any party may object to these proposed findings, conclusions, and recommendation by filing such objections within eleven (11) days. Pursuant to Fed.R.Civ.P. 5(b), service by mail is complete upon mailing. Fed.R.Civ.P. 6(e) allows a 3-day service by mail extension. Therefore, any objections must be "filed" on or before the fourteenth (14th) day after this Recommendation is filed. Any such objections shall be made in a written document entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.