Opinion
3:04-CV-0798-L.
August 17, 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 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 of Case: This is a habeas corpus action brought pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Dawson State Jail of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) in Dallas, Texas. Respondent is the Director of TDCJ-CID. The court has issued process in this case.
Statement of Case: Petitioner pled guilty to possession of a controlled substance in the 114th Criminal District Court of Smith County, Texas, No. 4-92-48-A. The trial court placed Petitioner on deferred adjudication probation for a period of ten years. Thereafter, on July 28, 1993, his probation was revoked and he was sentenced to sixteen years imprisonment and a $5,000 fine. Petitioner was released on parole on April 29, 1998. The Texas Board of Pardons and Paroles revoked his parole on March 25, 2003. As part of the revocation proceedings, the Texas Board of Pardons and Parole forfeited good-time credits earned prior to Petitioner's release on parole, and refused to give him credit for the time he served on parole — i.e., street-time or flat time credits.
In the instant petition, filed on April 15, 2004, Petitioner challenges the forfeiture of his good-time and street-time credits as violative of his constitutional rights. He filed a prior state habeas application pursuant to art. 11.07, Texas Code of Criminal Procedure, which was dismissed by the Texas Court of Criminal Appeals because Petitioner had not complied with Texas Government Code § 501.0081. Ex parte Johnson, No. 58 108-01, at cover.
In response to this order to show cause, Respondent filed a motion to dismiss for failure to exhaust state administrative remedies along with the state court record. Petitioner objected to motion to dismiss.
Findings and Conclusions: To maintain a habeas corpus action a Petitioner must exhaust his state remedies. See 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 (5th Cir. 1985). The normal procedural mechanism for presenting disputes over time credits when the time for direct appeal has passed has historically been by a post-conviction petition for writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004), and more recently, by resorting first to the procedure outlined in Tex. Gov't Code Ann. § 501.0081 (Vernon Supp. 2004) before filing the state habeas application.See Ex parte Shepherd, 65 S.W.3d 673, 674-75 (Tex.Crim.App. 2002) (concurring opinion) (noting inmate may apply for a writ of habeas corpus under Article 11.07 after inmate receives written decision issued by highest authority provided for in the resolution system), Ex parte Stokes, 15 S.W.3d 532 (Tex.Crim.App. 2000) (per curiam) (same).
Section 501.0081 provides as follows:
(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.
Tex. Gov't Code Ann. § 501.0081 (Vernon Supp. 2004).
As reflected in Respondent's motion to dismiss, Petitioner has not satisfied the exhaustion requirement. Although Petitioner filed an art. 11.07 application, the Texas Court of Criminal Appeals dismissed the same on March 17, 2004, for failing first to resolve the claim administratively pursuant to Tex. Gov't Code § 501.0081. See Ex parte Johnson, No. 58 108-01, at cover. The Texas Court of Criminal Appeals has, thus, not had an opportunity to consider the merits of the claims which Petitioner raises in this action.
In response to the motion to dismiss, Petitioner asserts he exhausted his administrative remedies before filing his art. 11.07 application. He contends the dismissal of his art. 11.07 application under § 501.0081 was erroneous. This assertion is unavailing. Petitioner correctly notes that on April 25, 2003, before filing his art. 11.07 application, he submitted a time credit dispute resolution, which TDCJ denied on November 6, 2003. (Respondent's mot. to dism. at Exh. A). He overlooks the fact that on June 17, 2003, almost two months after filing his first time-credit dispute, he "refiled" the same dispute with TDCJ. (Id. and Petitioner's motion to deny Respond.'s mot. to dism. at 1).
Petitioner does not explain why he re-filed a time-credit request, while his first request was still pending with TDCJ.
Pursuant to Tex. Gov't Code § 501.0081(b), the second time-credit dispute remained pending with TDCJ for 180 days or until December 17, 2003, nine days after Petitioner filed his art. 11.07 application. See Tex. Gov't Code § 501.0081(b) (providing that "if the inmate has not received a written decision" on his time credit dispute within 180 days after filing the same, he may submit an art. 11.07 application). Therefore, at the time Petitioner filed his art. 11.07 application on December 8, 2003, he had neither exhausted his administrative remedies since his second time credit dispute was still pending, nor was he entitled to file an art. 11.07 application due to the passage of the 180-day period.
In his response to the motion to dismiss, Petitioner also asserts that TDCJ's response to his first time-credit dispute concluded the administrative process in its entirety. This argument is likewise meritless. TDCJ's response dated November 6, 2003, specifically denied only the first time-credit dispute. The response referred to the time credit claim filed on April 25, 2003. Moreover, it advised Petitioner that administrative remedies had concluded as to " this complaint," — i.e., the first claim.
The magistrate judge notes that at any point after his first dispute was denied Petitioner could have chosen to withdraw his second time-credit dispute. He proceeded instead to file his art. 11.07 application, before the 180-day period following the filing of his second time-credit dispute had expired. Cf. Larry v. Dretke, 361 F.3d 890, 897-98 (5th Cir. 2004) (petitioner's own action of filing state habeas application before judgment became final, rather than any action taken by the state court, prevented him from timely filing his federal habeas petition; "at any point Larry could have withdrawn his improperly filed application and properly filed a new one.").
Under the facts outlined above, the magistrate judge concludes that the petition for a writ of habeas corpus remains unexhausted. See 28 U.S.C. § 2254(b). RECOMMENDATION:
The court cautions Petitioner that the 1996 amendment to the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. See 28 U.S.C. § 2244(d).
For the foregoing reasons, it is recommended that the District Court grant Respondent's motion to dismiss and dismiss the petition for writ of habeas corpus without prejudice for failure to exhaust state habeas corpus remedies. See 28 U.S.C. § 2254(b).
A copy of this recommendation will be mailed to counsel for Respondent, and to Petitioner James W. Johnson 671575, Dawson State Jail, P.O. Box 650051, Dallas, TX 75265.