Opinion
Civil Action No. SA-05-CA-0544-XR.
December 5, 2005
ORDER ACCEPTING UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION IN PART
On this date the Court considered the United States Magistrate Judge's Second Report and Recommendation in the above-numbered and styled case, filed November 1, 2005 (docket no. 14), and the petitioner's objections thereto, filed November 21, 2005 (docket no. 16). After careful consideration, the Court will accept the recommendation to dismiss the petition.
I. Facts Procedural Background
Hector Leal, an inmate in the custody of the Texas Department of Criminal Justice — Correctional Institutions Division, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Leal complains that he has been improperly denied credit towards his sentence for time spent on mandatory supervision. Leal plead guilty and was convicted in 1994 for the felony offense of unlawfully carrying a weapon on a licensed premises. On September 2, 1994, he was sentenced to ten years imprisonment. After serving four years, Leal was released on mandatory supervision on September 18, 1998. According to Leal, a summons to revoke mandatory supervision was issued September 2, 3003, and his mandatory supervision was revoked on November 3, 2003. According to Respondent, Leal was returned to TDCJ custody on December 16, 2003.
Leal is also concurrently serving a sentence for possession of cocaine (cause no. 92-CR-7519).
Leal filed a state habeas corpus application raising his entitlement to credit for time served on mandatory supervision on July 23, 2004. The Court of Criminal Appeals denied his habeas petition on May 4, 2005, citing Texas Government Code section 501.0081(b). Ex parte Leal, No. 60,092-01. Leal then filed this petition for habeas corpus relief on May 31, 2005. He complains that he has been improperly denied street-time credit under Texas Government Code § 508.283(c) for time he spent on mandatory supervision.
The Magistrate Judge originally recommended denying the petition based on the language of Texas Government Code § 508.283(c). That statute states that "[f]or a person who on the date of issuance of a warrant or summons initiating the revocation process is subject to a sentence the remaining portion of which is greater than the amount of time from the date of the person's release to the date of issuance of the warrant or summons, the remaining portion is to be served without credit for the time from the date of the person's release to the date of revocation." The Magistrate Judge concluded that Leal was a person who on the date of issuance of a warrant or summons initiating the revocation process was subject to a sentence the remaining portion of which was 6 years (10 years less 4 years time served), and that this "remaining portion" was greater than the amount of time from the date of his release to the date of issuance of the warrant or summons, which was slightly less than five years. Accordingly, applying section 508.283(c), the Magistrate Judge concluded that Leal must serve the remaining portion of his sentence, 6 years, without credit for the time from the date of his release to the date of revocation.
Leal filed his objections to the Magistrate's recommendation, specifically challenging the Magistrate's construction and application of section 508.283(c). Leal contended that the "remaining portion" of his sentence for purposes of section 508.283(c) was approximately one year (6 years remaining on his sentence at the time of release less 5 years on mandatory supervision). Applying the credit for his time spent on mandatory supervision, Leal contended that his sentence was completed in October 2004. Leal cited to the Texas Court of Criminal Appeals' decision in Ex parte Spann, 132 S.W.2d 390 (Tex.Crim.App. 2004), which construed section 508.283(c) in the manner urged by Leal. In Spann, the court held that "[t]he proper interpretation of `remaining portion' is the remaining portion of the sentence on the RELEASE date, less time spent on parole." Id. at 396. Moreover, the court provided an example of the proper application of the statute that was virtually identical to the facts in this case and would allow street time credit. Spann, 132 S.W.3d at 395.
This Court found persuasive Leal's objection to the Magistrate's analysis and construction of section 508.283(c), but noted that, based on the Court of Criminal Appeals' denial of his habeas application, other factors may preclude the application of section 508.283(c), and found that further development was needed. The Court returned the case to the Magistrate Judge for further evaluation and development in light of Spann.
The Magistrate Judge then ordered that Respondent be served with Petitioner's habeas corpus petition and set a briefing schedule. Respondent Dretke filed an answer and brief on October 3, arguing that Leal has not exhausted his state court remedies as required by 28 U.S.C. § 2254(b) and (c) because his state habeas application was dismissed pursuant to section 501.0081 (failure to exhaust administrative remedies). Respondent notes that Leal has now exhausted his administrative remedies, but because he had not done so prior to filing his habeas application, Leal did not present his claims in a procedurally correct manner and the Court of Criminal Appeals properly dismissed the habeas application without considering the merits. Respondent also argues that Leal's habeas claims are without merit because he has no right to street-time credit.
Leal responded to Dretke's brief, asserting that he sent a time resolution request on January 28, 2004, but received no answer and was told on September 23, 2004 to contact State Counsel for Offenders. Leal states that he had already sent a request to State Counsel on February 2, 2004 and was told he was not eligible for street time. Leal then filed his habeas application in the state district court on July 23, 2004. Leal argues that these facts show that he did exhaust his administrative remedies and argues that, after contacting State Counsel on February 2, 2004, any further attempts to exhaust administrative remedies were futile, as proven by the reply from the Record Division on May 17, 2004. Thus, Leal argues, because the administrative process would have been futile, he is exempt from the exhaustion requirement. He further asserts that, even if his time resolution request was lost, the State Counsel's office had notice that he was seeking a resolution but failed to resolve the issue.
Magistrate Judge Primomo issued a second Memorandum and Recommendation on November 1, 2005. He recommends that Leal's habeas petition be dismissed for failure to exhaust administrative remedies under § 2254(b). The state habeas court found that, as of August 17, 2004, Leal had not filed a time credit dispute with TDCJ-ID. Leal did submit a form on September 29, 2004, after he filed his state habeas application, and Leal did not receive a response within 180 days. But the Texas Court of Criminal Appeals dismissed the petition on May 4, 2005, for failure to exhaust state administrative remedies under § 508.0081. On May 17, 2005, the State Classification Committee responded to Leal that there was no error in his time calculations.
In his analysis, Magistrate Judge Primomo notes that Leal provides no authority for his assertion that communication with the State Counsel for Offenders in February 2004 is sufficient to satisfy section 501.0081. Further, he cites Texas Court of Criminal Appeals' decisions holding that an inmate must have exhausted his administrative remedies under § 501.0081 before filing his habeas application or the application must be dismissed. Thus, Magistrate Judge Primomo recommends that, because Leal's dispute resolution form was submitted after his state habeas petition was filed and the Court of Criminal Appeals dismissed his application for failure to exhaust on that basis, Leal has failed to exhaust available state remedies and the Court should dismiss this habeas proceeding for failure to exhaust under § 2254. In the alternative, Magistrate Judge Primomo recommends denying the habeas petition because Leal is not entitled to the relief he seeks.
Section 508.283(c) permits inmates to receive credit for time spent on mandatory supervision, but expressly excludes persons described by Section 508.149(a), which includes an inmate who is serving a sentence or has been previously convicted of a second degree felony under Section 29.02 of the Texas Penal Code (robbery). Magistrate Judge Primomo notes that the August 2005 letter from the State Classification Committee reflects that Leal was denied street credit because of a prior robbery conviction, and thus Leal is not entitled to credit under section 508.283(c).
Apparently, Leal was convicted of robbery in 1968. Section 508.283(c) excludes "a person described by Section 508.149(a)." Section 508.149(a) states that "[a]n inmate may not be released to mandatory supervision if the inmate is serving a sentence for or has been previously convicted of . . . (11) a second degree felony under Section 29.02, Penal Code." Leal argues that he was not convicted under Section 29.02 of the Texas Penal Code. The August 17, 2005 letter from the State Classification Committee states that TDCJ "takes the position that eligibility for HB 1649 `street time' should depend strictly upon whether the person is `described by Section 508.149(a) of the Government Code' at the time of revocation. The subject offender was denied HB 1649 `street time' credits due to prior conviction for Robbery under TDCJ #203604 purusant to HB 1649 criteria." Recently, the Texas Court of Criminal Appeals clarified that, in determining the application of § 508.149(a) to § 508.283(c), the question is whether the inmate is eligible for mandatory supervision. Ex parte Keller, 173 S.W.3d 492, 495 (Tex.Cr.App. 2005). Eligibility for mandatory supervision is governed by the law in effect at the time the "holding offense" was committed. Id. Thus, if the inmate is eligible for mandatory supervision at the time he committed his holding offense(s), he remains eligible regardless of whether the applicable mandatory supervision law has changed in the meantime. Id. The Court notes that TDCJ's position that eligibility depends on whether the person is described by Section 508.149(a) at the time of revocation appears to conflict with the Court of Criminal Appeals' recent holding in Keller. In addition, because Leal was released on mandatory supervision, it appears he is eligible for mandatory supervision, and thus eligible for street time credit. The Court does not have sufficient information to evaluate this claim, however. In any event, the Court need not resolve this issue because, as discussed below, dismissal is appropriate for failure to exhaust. Accordingly, the Court does not accept Magistrate Judge Primomo's recommendation to deny this habeas petition on the merits.
Exhaustion of Remedies
Texas Government Code § 501.0081(a) provides that "[t]he 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." Further, unless the inmate is, according to the department's computations, within 180 days of the inmate's presumptive parole date, date of release on mandatory supervision, or date of discharge, 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 he receives a written decision issued by the highest authority provided for in the resolution system or 180 days have passed from the date on which the inmate first alleges the time-served credit error under the resolution system. Id. § 501.0081(b), (c).Thus, § 501.0081 requires an inmate who alleges that time credited on his sentence is in error to first present this claim to the TDCJ office of time credit resolution. Ex parte Dunlap, 166 S.W.2d 268 (Tex.Cr.App. 2005); Ex parte Stokes, 15 S.W.3d 532, 532-33 (Tex.Cr.App. 2000). Justice Cochran's opinion concurring with the habeas dismissal in Ex parte Shepherd, 65 S.W.3d 673 (Tex.Cr.App. 2002), addresses the issues raised in this case. She stresses that an inmate may not file an application for a writ of habeas corpus to receive time-credits until and unless he has complied with the requirements of § 501.0081. That section specifically requires an inmate to file a dispute resolution request with the Texas Department of Criminal Justice Time Credit Dispute Resolution Office and to receive a written decision from that office before he files an application for a writ of habeas corpus, unless the department has not responded to his request within 180 days or unless the inmate is within 180 days of being released on parole. Id. at 674 (Cochrahn, J., concurring in dismissal). She continued:
In this case, applicant first complained to State Counsel for Offenders about his sentence credits and calculations and they rejected his claims with letters dated January 18, 2001, and May 23, 2001. But this is not the appropriate office for filing a time-served complaint. Under Section 501.0081, such claims must be submitted to the Texas Department of Criminal Justice Time Credit Dispute Resolution Office. Applicant filed his writ application on July 26, 2001, then he filed a request with the time credit resolution office, and then he filed another writ application on September 12, 2001. All of this occurred before the time resolution office rejected his time credit request on November 30, 2001.
Under Section 501.0081, applicant was not entitled to file an application for a writ of habeas corpus until after he received the rejection letter on November 30, 2001. This section does not provide for or allow a "jump start" on a writ application. When trial courts receive a writ application under Section 501.0081 without a copy of the rejection letter from the time resolution office, they must recommend dismissal of the writ. When this Court receives a writ application and associated materials which show that the habeas applicant filed his writ before receiving a rejection letter from the time resolution office, it must dismiss that writ.Id. at 675-75 (Cochran, J., concurring in dismissal).
Thus, because Leal failed to utilize the requisite state dispute resolution procedures before filing his state habeas application, he failed to exhaust his state administrative remedies, and the Texas Court of Criminal Appeals dismissed his application on that basis. That failure to exhaust requires this Court to also dismiss his petition for habeas relief. A state prisoner must exhaust all remedies available in state court before proceeding in federal court unless circumstances exist that render the state corrective process ineffective to protect the prisoner's rights. 28 U.S.C. § 2254(b). In order to exhaust properly, Petitioner must "fairly present" his claims to the state court. Picard v. Connor, 404 U.S. 270 (1981). In Texas, all claims must be presented to and ruled on by the Texas Court of Criminal Appeals. Deters v. Collins, 985 F.2d 789 (5th Cir. 1993). The exhaustion requirement is not met where a petitioner has failed to present his claims in a procedurally proper manner. See Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (per curiam) (explaining that a claim is not exhausted unless the highest state court has a "fair opportunity to pass on the claim," which in turn requires that the applicant "present his claims before the state courts in a procedurally proper manner according to the rules of the state courts").
Here, Leal presented his claims to the Texas courts in a state habeas corpus application without first exhausting his administrative remedies as required by Section 501.0081 of the Texas Government Code. The fact that Leal believed he would not and ultimately did not succeed in the administrative process does not render the process futile such that Leal would be excused from the process before filing his state habeas application. The Court rejects Leal's argument that he is excused from exhausting available state administrative remedies on the basis of futility. Moreover, even if the state administrative process were futile, Leal has not demonstrated that he has no remedy via another state habeas petition. Because his first state habeas corpus application was dismissed for a procedural reason, the Texas courts have not reviewed the substance of Leal's claims and they are therefore unexhausted. The record reflects that Leal completed the administrative time credit dispute procedures. State corrective process remains available in the form of a state habeas application under Article 11.07. Respondent agrees that, because Leal's prior state habeas application was dismissed for failure to exhaust, Leal may submit another application to the state court, including any evidence of administrative exhaustion. Further, because he is now within 180 days of his date of release on mandatory supervision (March 8, 2006), he may file his state habeas application even if he had not exhausted his remedies under § 508.0081. An applicant shall not be deemed to have exhausted the remedies available in the courts of the State 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(c). Since there appears to be no exception to the exhaustion requirement in this case, Leal's failure to exhaust his state court remedies means that this Court cannot grant relief. For this reason, Leal's petition must be dismissed
The Court ACCEPTS the Magistrate Judge's recommendation that this petition be DISMISSED for failure to exhaust administrative remedies. The Court does not accept the Magistrate Judge's recommendation that this petition be denied on the merits.