Opinion
CIVIL ACTION NO. 4:02-CV-0698-A
August 20, 2002
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows;
FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This action seeks relief consistent with that allowed under a petition brought pursuant to 28 U.S.C. § 2254 by a state prisoner.
B. PARTIES
Petitioner Angelo Mack, TDCJ-ID # 645368, is currently confined in the Texas Department of Criminal Justice, Institutional Division, Michael Unit, in Tennessee Colony, Texas.
Because Mack is incarcerated under the authority of TDCJ-ID, and this action purports to challenge the loss of good time credit toward his state court sentence under which he is confined, TDCJ-ID director Janie Cockrell is the proper Respondent. No process has been issued to Respondent in this case.
C. LEGAL ANALYSIS
Petitioner Angelo Mack commenced this action by filing a five-page handwritten document entitled "Petitioner for Mandamus." After review and consideration of the handwritten petition for writ of mandamus, it appears that Mack's mandamus request should be construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Although Mack specifically states that he is seeking mandamus relief, his actual claim for relief is that he is being denied credit for good time previously earned prior to the revocation of his parole release from the fifteen-year sentence imposed by the 213th Judicial District Court of Tarrant County, Texas, in cause number 0485171D.
A federal district court lacks the general power to issue writs of mandamus to direct state courts and their officers where mandamus is the only relief sought. Even though the writ of mandamus is abolished in this context, however, the Court can give the same relief that would be called for by mandamus using other methods provided by law. Where a party challenges the fact or duration of his imprisonment and the relief he seeks is immediate release or speedier release from such imprisonment, the claim is cognizable only as an action for a petition for writ of habeas corpus.
See FED. R. CIV. P. 81(b); see also Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973).
See Russell v. Knight, 488 F.2d 96, 97 (5th Cir. 1973) (construing mandamus petition as a § 2254 habeas petition); see also Willis v. White, 310 F. Supp. 205, 206 (E.D. La. 1970) (noting the Court's obligation to consider a petitioner's complaint even though mislabeled).
See Preiser v. Rodriguez, 411 U.S. 475, 499 n. 14 (1973).
Here, although Mack does not expressly seek to be released from confinement, his request that he be given sentence credit ultimately relates to the duration of his confinement. Thus, this Court hereby construes Mack's request for a writ of mandamus as a petition for writ of habeas corpus under 28 U.S.C. § 2254.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and 28 U.S.C. § 2243 both authorize a habeas corpus petition to be summarily dismissed. The Court of Appeals for the Fifth Circuit recognized the district courts' authority under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. From the face of the petition, and from court records of which this Court can take judicial notice, it appears that this is a successive petition filed without the permission of the Court of Appeals as required by 28 U.S.C. § 2244(b)(1) and (2).
Section 2243, governing applications for writ of habeas corpus, provides in relevant part:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C.A. § 2243 (emphasis added).
Rule 4 of the Rules Governing Section 2254 Cases provides in relevant part:
The original petition shall be promptly presented to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
RULES GOVERNING SECTION 2254 CASES, RULE 4 (emphasis added).
Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999).
Petitioner Mack challenges the alleged failure to afford him good time credit towards his sentence in state cause number 0485171D. (Pet. at 1-5.) Mack previously raised the same time-credit issue in a nearly identical petition for writ of habeas corpus in Mack v. Johnson, Civil Action No. 4:01-CV-1003-A. That petition was dismissed as successive pursuant to 28 U.S.C. § 2244(b)(1) in a judgment entered on the docket on January 17, 2002.
The Court takes judicial notice of the records of this Division in Mack v. Johnson, No. 4:01-CV-1003-A. The Court also takes judicial notice of the records of this Division in Mack v. Johnson, No. 4:99-CV-744-T, wherein Mack challenged on substantive grounds his state conviction in cause number 0485171D.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a second or successive petition filed by a person attacking a sentence under § 2254 must be authorized by a three judge panel of the appropriate court of appeals. These provisions require dismissal of a second or successive habeas corpus proceeding unless specified conditions are met. Since Mack's present petition was filed after the effective date of the AEDPA, this Court is without jurisdiction to consider the petition unless leave to file the same is granted by the Fifth Circuit.
Id. § 2244(b)(2)-(3).
Petitioner Mack has not obtained an order from the Fifth Circuit authorizing the district court to review his successive petition for habeas corpus relief. As a result, it appears that Mack's petition under 28 U.S.C. § 2254 should be dismissed without prejudice to his right to file a motion in the United States Court of Appeals for the Fifth Circuit for leave to file a successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A).
RECOMMENDATION
It is therefore recommended that Mack's August 9, 2002 "Petitioner for Mandamus" be construed as a petition for habeas corpus relief under 28 U.S.C. § 2254. It is further recommended that Mack's petition for writ of habeas corpus under 28 U.S.C. § 2254 be dismissed without prejudice to his right to file a motion in the United States Court of Appeals for the Fifth Circuit for leave to file a successive petition.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations until September 10, 2002. Pursuant to Douglass v. United Services Auto Ass'n, failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until September 10, 2002 to serve and file with the court, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations. It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and is hereby, returned to the docket of the United States District Judge.