Opinion
2:00-cv-0082.
February 21, 2001.
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241 FOR FAILURE TO EXHAUST STATE COURT REMEDIES
On March 7, 2000, petitioner DAVID SCOTT MABRA, state prisoner #273990 confined in the Allred Unit in Iowa Park, Texas pursuant to a conviction for the offense of burglary of a habitation out of the 47th Judicial District Court in Armstrong County, Texas, filed with this Court a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241. In his form habeas application, petitioner indicates his petition concerns "A judgment of conviction or sentence, probation or deferred-adjudication probation." Petitioner states as the grounds on which he claims he is being held unlawfully:
1. "Violation of the right to a fast and speedy trial"; and
2. "The evidence was insufficient to sustain the conviction."
Also in his form, petitioner indicated he had not filed previous petitions for habeas corpus, but that he directly appealed the judgment of conviction to the Court of Appeals for the Seventh District of Texas where it was affirmed on July 9, 1999. Thereafter, petitioner indicated he filed a petition for discretionary review (PDR) which was refused by the Texas Court of Criminal Appeals on November 17, 1999. Respondent filed his answer on May 25, 2000 requesting dismissal for failure to exhaust state court remedies. Petitioner filed a response there to on June 6, 2000 and states that while he has no personal knowledge whether his claim of denial of a fast and speedy trial was presented in his PDR, he concedes to respondent's position that it was not. Petitioner then requests dismissal without prejudice subject to refiling after exhaustion of state court remedies and appears to make a motion to relate back pursuant to Federal Rules of Civil Procedure, Rule 15(c).
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 new 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.
In the instant case, petitioner has conceded that the only ground raised in his petition for discretionary review was the claim of insufficiency of evidence presented at trial. Based on this representation, it appears petitioner has not properly presented, to the highest court of the State of Texas, the substance of all of the claims he now presents to this federal court. It thus appears petitioner has presented a "mixed" petition which is subject to dismissal under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Petitioner has not presented to the state courts the additional claim he now raises in the instant federal habeas application, i.e. the denial of the right to a speedy trial and for this reason it appears that petitioner has filed the instant federal habeas petition prior to exhausting his state court remedies. Accordingly, as the record now exists, it is the opinion of the Magistrate Judge that the petition must be dismissed for failure to exhaust.
It is noted that petitioner, in his response to the motion to dismiss, requests dismissal without prejudice, and, that any subsequent petition filed "relate back" to this, the first petition. It is the opinion and finding of the undersigned that the instant petition is subject to dismissal for failure to exhaust, without qualification. Therefore, to the extent petitioner is requesting, at this time, an advance ruling that any subsequent habeas petition filed will be considered timely, or within limitations, or that the filing date of this petition will be used as the filing date of any subsequent petition, such determination is not part of this recommendation and petitioner's request to "relate back" should be DENIED.
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 Under 28 U.S.C. § 2241 filed by petitioner DAVID SCOTT MABRA 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 within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b); 6(e). 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.