Opinion
2:01-CV-0335.
April 23, 2004
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner CECIL CLAYTON JONES, JR., a state prisoner currently confined in the Clements Unit, has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody. It appears petitioner is confined pursuant to a 1986 conviction out of the 36th Judicial District Court of Aransas County, Texas for the offenses of unauthorized use of a vehicle, unlawful possession of a firearm, and burglary, and is serving a 25-year sentence assessed on such convictions.
By the instant habeas application, petitioner appears to allege the State of Texas is applying an unidentified law to petitioner ex post facto, and complains of the conditions of his confinement, viz., that he is being "forced to perform slave labor and involuntary servitude as no pay or wages are earned by petitioner for labor performed." In his application, petitioner advises this Court that the grounds alleged herein are "presented for the first time because this is the first opportunity to present the issues to court for litigation."
On September 18, 2001, petitioner was ordered to show cause why this habeas application should not be dismissed for failure to exhaust state court remedies available in the courts of the State. See 28 U.S.C. § 2254(b), (c). On October 3, 2001, petitioner filed a response wherein he clarifies that in the instant proceeding, he "is making a claim of constitutional rights violations related to the conditions of his confinement." Petitioner advises the Court of his belief that because he is not "making any claims related to his trial or conviction," that a state habeas application pursuant to section 11.07 of the Texas Code of Criminal Procedure is not proper. Petitioner advises he has taken what he believes is the only "way or vehicle" to exhaust state remedies, i.e., filing a "prison grievance," which he identifies as the 42 U.S.C. § 1983 suit he had filed with this Court. See Cause No. 2:01-CV-0334 (dismissed December 17, 2001). Petitioner also states he has tried to bring these "new grounds of error" in the trial court but that such claims have been denied "without written order," which holding petitioner construes as a determination that the claims will not be heard because they were not brought in his original state habeas application. Petitioner thus concludes that as there is not adequate or effective state post-conviction relief, that he has sufficiently exhausted his state court remedies.
I. CIVIL RIGHTS CLAIM
A writ of habeas corpus is the sole federal remedy for a state prisoner challenging the very fact or duration of his physical imprisonment, whereby the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 Sup.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973). On the other hand, "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody." Id. At 499. Accordingly, challenges to the fact or duration of confinement are to be brought by a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, and challenges to conditions of confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983.
Here, petitioner, in part, is complaining that he is being "forced to perform slave labor and involuntary servitude as no pay or wages are earned by petitioner for labor performed" — a challenge to a condition of his prison life. In his response to the Show Cause Order, petitioner acknowledges this claim of a constitutional rights violation "is related to the conditions of his confinement." Petitioner is improperly attempting to assert a claim for a violation of his civil rights in a petition for a writ of habeas corpus. Consequently, this claim should be DISMISSED.
II. EX POST FACTO APPLICATION OF A LAW
Petitioner also argues the State of Texas is applying a law to petitioner in violation of the constitutional prohibition against ex post facto laws. Petitioner has not identified the law, has not argued or demonstrated how such law is being applied to petitioner in an ex post facto manner, nor has he shown how he has been prejudiced by such application. Petitioner's claim is conclusory and should be denied on this basis.
Alternatively, petitioner's claim should be dismissed because he has failed to exhaust his 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) and, consequently, the provisions of the AEDPA apply. 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.
In the instant case, petitioner has not yet properly presented, to the highest court of the State of Texas, the substance of the claims he now presents to this federal court. In fact, petitioner acknowledges that although he has filed two prior state habeas petitions challenging his parole revocation and raising double jeopardy issues, he has not filed a state habeas petition raising the grounds herein presented. Petitioner asserts, however, that there is no adequate or effective state post-conviction relief available to him. Specifically, petitioner maintains that a state 11.07 proceeding is not the proper vehicle by which to raise the grounds raised herein because he is not challenging his original trial or conviction. Petitioner also argues he cannot assert the grounds in another state habeas proceeding, contending his two prior state habeas petitions were denied because the grounds raised therein were not brought in his first state habeas proceeding challenging his original conviction. Petitioner also contends there is only one way to exhaust state remedies, i.e., through filing a prison grievance in a section 1983 civil suit, which he has done.
Petitioner's arguments are not valid and do not excuse his failure to present the claims to the state courts. Petitioner's prior state habeas proceedings were denied without written order — a determination on the merits of such petitions rather than a dismissal for being abusive. Moreover, a federal civil rights suit does not, in any manner, present claims to the state court for resolution. As the record now exists, it is the opinion of the Magistrate Judge that whatever ex post facto claim petitioner has raised, or attempted to raise, in the instant petition has not been presented to the state courts and must be dismissed for failure to exhaust.
III. 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 CECIL CLAYTON JONES, JR. be DISMISSED.
IV. 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 within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b) (objections are due within ten days after being served); Fed.R.Civ.P.5(b) (service by mail is complete upon mailing); Fed.R.Civ.P. 6(e) (this deadline incorporates the 3-day service by mail extension). 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.