Opinion
Civil Action No 4:01-CV-823-Y
April 11, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 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 is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2241 et seq.
B. PARTIES
Petitioner J.B. Moblin, TDCJ-ID #490011, is in the custody of the Texas Department of Criminal Justice, Institutional Division, and presently incarcerated in the Choice Moore Unit in Overton, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On August 1, 1988, Moblin pleaded guilty in Cause #0320462 in Criminal District Court No. 2 of Tarrant County, Texas to the offense of aggravated sexual assault of a child. The trial court entered judgment on the plea and assessed a punishment of twenty years in the Texas Department of Corrections (now known as the Texas Department of Criminal Justice — Institutional Division). (State Habeas R 16). Moblin did not appeal his conviction, Moblin was released on mandatory supervision May 19, 1995, but his mandatory supervision was revoked on November 13, 2000.
Moblin has filed one state habeas application, dated July 30, 2001, which the Texas Court of Criminal Appeals denied without written order on September 19, 2001 Ex parte Moblin, No 50,076-01 (Tex.Crim.App. Sept. 19. 2001). Moblin filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 6, 2001.
For purposes of this habeas corpus proceeding, the federal petition is deemed filed on the date the petitioner executed his petition and presumably deposited it in the prison mailing system Spotville v. Cain. 149 F.3d 374 (5th Cir. 1998).
D. ISSUES
Petitioner presents the following as grounds for relief
1. The state has altered or amended the trial court judgment to extend his sentence in violation of the constitutional prohibition against cruel and unusual punishment
2. His guilty plea was involuntary because the state has breached the underlying plea agreement by extending his sentence.
3. The forfeiture of credit for the time he spent on mandatory supervision release violates the ban on bills of attainder.
4. The forfeiture of his street time and extension of his sentence violates the doctrine of separation of powers.
E. RULE 5 STATEMENT
Respondent believes Petitioner has not exhausted available state remedies on any of the issues presented, but does not move for dismissal on this ground and instead urges that the issues have been procedurally defaulted.
F. DISCUSSION
Moblin contends that forfeiture of the time he spent on mandatory supervision release is cruel and unusual punishment and violates the constitutional prohibition against bills of attainder. Additionally, he contends that his guilty plea has been rendered involuntary because the state has extended his sentence in violation of the plea agreement. Moblin also asserts that the forfeiture of his street time violates the doctrine of separation of powers because it usurps the court's function to assess punishment. Respondent asserts that Moblin failed to exhaust his complaints in the state court.
An applicant's federal writ of habeas corpus shall not be granted unless the applicant has exhausted his state court remedies. 28 U.S.C. § 2254(b), (c). A claim must be presented to the highest court of the state to satisfy the exhaustion requirement. O'Sullivan v. Boerekel, 526 U.S. 838 (1999); Richardson v. Procunier, 762 F.2d 429, 430 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert, denied, 460 U.S. 1056 (1983). A Texas prisoner challenging the failure to be awarded credit towards his sentence may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in a state habeas corpus proceeding. Alexander v. Johnson, 163 F.3d 906 (5th Cir 1998), Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir 1986), Richardson, 762 F.2d at 432 See generally TEX CODE CRIM. PROC. ANN art. 11.07 (Vernon Supp. 2001).
In his sole state application for writ of habeas corpus, Moblin complained that his forfeited street time of five years and five months had not been returned to him upon his request. (State Habeas R. 4-5). He did not challenge his guilty plea as involuntary, did not allege an Eighth Amendment violation, and did not contend that the forfeiture was unlawful as a bill of attainder or a violation of separation of powers His complaints have not been exhausted in the state courts,
Respondent, however, asserts that Moblin's petition is subject to a procedural bar because any attempt to exhaust the claims would be futile as the state courts would consider a successive application to be an abuse of the writ. The general rule that a state court must explicitly apply a procedural bar to preclude federal review is not applicable to those cases where the petitioner failed to exhaust his state court remedies and the state court to which he would be required to present his unexhausted claims would now find those claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 LEd 2d 640 (1991). In such cases, there is a procedural default precluding federal habeas review unless the defendant can demonstrate good cause for the default and actual resulting prejudice. See id. at 751, 111 S.Ct at 2565, Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977)
Absent a showing of cause, the Texas abuse-of-the-writ doctrine prohibits a second habeas petition if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. See generally Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). This doctrine is an adequate state procedural bar for purposes of federal habeas review Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert, denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 09, 423 (5th Cir 1997). Moreover, the fact that a prisoner proceeds pro se is not sufficient cause in itself to excuse a procedural bar McCowin v. Scott, 67 F.3d 100, 102 (5th Cir 1995); Hill v. Black, 932 F.2d 369, 372-73 (5th Cir. 1991). Cause under the "cause and prejudice" standard must be an objective factor, external to the petitioner, that cannot be fairly attributed to him. Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991), Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1999).
Moblin fails to assert cause or prejudice to excuse his default, nor does a review of the record establish cause for his default and actual prejudice as a result. Accordingly, a procedural bar precludes review of Moblin's complaints.
Respondent also contends that, to the extent, Moblin is challenging his underlying conviction. his complaints are time-barred Given that Moblin's complaints are procedurally defaulted, the court need not address Respondent's alternative statute of limitations' argument.
RECOMMENDATION
The Petition for Writ of Habeas Corpus should be denied.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) days 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 recommendation until May 3, 2002. Pursuant to Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990) and Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir 1996) (en banc), 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
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until May 3, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
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 hereby is returned to the docket of the United States District Judge