MacKey v. Dretke

Full title: TERRY JAMES MacKEY, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Dec 21, 2004

2:04-CV-0330 (N.D. Tex. Dec. 21, 2004)

Opinion

2:04-CV-0330.

December 21, 2004

REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS FOR FAILURE TO EXHAUST STATE COURT REMEDIES

CLINTON AVERITTE, Magistrate Judge

Petitioner TERRY JAMES MacKEY, an inmate confined in the Hall County Jail, has filed with this Court an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that the petition for a writ of habeas corpus should be DISMISSED for failure to exhaust state court remedies.

I. PROCEDURAL HISTORY

On February 17, 1999, petitioner was convicted, pursuant to a guilty plea, of the felony offense of burglary of a habitation out of the 251^st Judicial District Court of Randall County, Texas, and was sentenced to ten (10) years confinement in the Texas Department of Criminal Justice, Institutional Division. Petitioner did not directly appeal his conviction or sentence, nor did he file any state application for habeas corpus relief from his conviction.

It appears that on May 28, 2004, petitioner was granted early release to mandatory supervision but has since been arrested pursuant to a parole revocation warrant and is being held at the Hall County Jail pending a revocation hearing. The Randall County online docket does not indicate that a state habeas application challenging his current confinement has been filed with the state district court, nor does the Texas Court of Criminal Appeals website indicate any state habeas application has been forwarded to that court.

On December 16, 2004, petitioner filed with this Court, the instant federal petition for a writ of habeas corpus. Petitioner avers he placed the petition in the prison mailing system on December 4, 2004.

II. PETITIONER'S ALLEGATION

In support of his contention that he is being held in violation of the Constitution and laws of the United States, petitioner appears to present the following ground:

Petitioner has not received a parole revocation hearing within 120 days of his arrest as required by state statute.

III. EXHAUSTION OF STATE COURT REMEDIES

Section 28 U.S.C. § 2254 states, as relevant to this proceeding:

(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.

Petitioner has not filed any state habeas corpus application raising the ground asserted in the instant federal habeas application. Therefore, it appears the state's highest court has not yet had an opportunity to review and determine the merits of petitioner's claims. Accordingly, it is the opinion of the undersigned Magistrate Judge that the grounds raised in petitioner's federal habeas application have not been exhausted and said application is subject to summary dismissal in order that petitioner may present to, and obtain a ruling by, the Texas Court of Criminal Appeals on the unexhausted grounds.

IV. 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 filed by petitioner TERRY JAMES MacKEY be, in all things, DISMISSED for failure to exhaust state court remedies.

V. 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 most efficient means available.