Opinion
Civil Action No. 4:02-CV-790-Y
October 11, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
This case was initiated with the filing of a document labeled as a petition for writ of habeas corpus under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Marco Antonio Montes, is presently released on appearance bond from his arrest on charges of theft in the amount of between $1,500-$20,000. Petitioner named John Cornyn, Texas Attorney General as respondent. No process has been issued in this case.
C. LEGAL ANALYSIS
Section 28 U.S.C. § 2243 authorizes a habeas corpus petition to be summarily dismissed. After review of the petition pursuant to 28 U.S.C. § 2243, it appears that petitioner Montes is not entitled to relief. The reason for this recommendation is that from the face of the petition, it is apparent that Petitioner has not properly sought to exhaust his challenges in state court.
Section 2243, governing applications for writ of habeas corpus, provides:
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. § 2243 (emphasis added).
Petitioner Marco Antonio Montes is presently released on appearance bond from his arrest number 20030489 on charges of theft in the amount of $1,500-$20,000 resulting from complaint service number 0202-7183 dated August 15, 2002. As of October 3, 2002, although the complaint had been forwarded to the Tarrant County District Attorney's Office, that office had not filed a criminal case, nor presented a case to the Tarrant County Grand Jury. (October 3, 2002 Motion to Quash Subpoenas at 1-2.)
Petitioner seeks to challenge his arrest and pending complaint for theft on the following alleged grounds: (1) an "unconstitutional search and seizure;" (2) that his Fifth Amendment right to not be subjected to self-incrimination was violated; (3) that he was denied the right to counsel; and (4) that the failure of the State to file charges against him is in violation of his right to due process of law. (Pet. at § 20 (A-D); Memorandum in Support at pages 1-4.)
Although Montes entitled his action as brought under 28 U.S.C. § 2254, because this petition is filed as a challenge to ongoing state criminal proceedings, it should be construed as a petition under 28 U.S.C. § 2241. See Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (construing petition filed to seek release from a pending state criminal proceeding as brought under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254), citing Dickerson v. State of Louisiana, 816 F.2d 220, 224 (5th Cir. 1987) and Robinson v. Wade, 686 F.2d 298, 303-03 n. 8 (5th Cir. 1982); see also Lewis v. Bowles, No. 3:01-CV-CV-0049-M, 2002 WL 307442, at *1 (N.D.Tex. Feb. 21, 2002) (§ 2241 rather than § 2254 is the proper vehicle for habeas actions by pre-trial detainees).
In order for a court to review the claims of a state pretrial detainee under § 2241, however, two requirements must be satisfied. First, the petitioner must be "in custody." 28 U.S.C. § 2241 (c); Dickerson, 816 F.2d at 224. Second, the petitioner must have exhausted his available state remedies. Dickerson, 816 F.2d at 224. As to the first requirement, even though Montes is released on an appearance bond, because he may be obligated to appear at times and places ordered by a court, he is deemed to be "in custody" for the purposes of § 2241. See generally Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).
If this petition were considered under 28 U.S.C. § 2254, a statutory mandate regarding the exhaustion of all available state court remedies would apply. See 28 U.S.C. § 2254 (b)(1)(A) and (c). Despite the absence of such a statutory requirement for petitions filed under 28 U.S.C. § 2241 by persons in custody pending state criminal proceedings, the courts have judicially crafted an exhaustion doctrine, holding that federal courts should abstain from the exercise of jurisdiction until the issues are resolved in state court, either by trial on the merits or by other state procedures available to the petitioner. See Dickerson, 816 F.2d at 225 (citations omitted); see also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-92 (1973); Brown v. Estelle, 530 F.2d 1280, 1284 (5th Cir. 1976); and Clark v. Anderson, No. 4:01-CV-723-Y, 2001 WL 1631538 at *3 (N.D.Tex. Dec. 14, 2001). The exhaustion doctrine applicable to § 2241(d)(3) was judicially crafted on federalism grounds to protect the state courts' opportunity to resolve initially any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process. See Dickerson, 816 F.3d at 225; Clark, 2001 WL 1631538 at *3; see generally Rose v. Lundy, 455 U.S. 509, 518 (exhaustion requirement is "designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings"). In Braden, the United States Supreme Court reiterated that absent "special circumstances," a pretrial detainee may not adjudicate the merits of an affirmative defense to a state criminal charge before a judgment of conviction has been entered by a state court. Braden, 410 U.S. at 489. The "derailing of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court" is not allowed. Braden, 410 U.S. at 493.
In order to exhaust, a petitioner must fairly present all of his claims to the state courts. Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). In Texas, all claims must be presented to the Court of Criminal Appeals. Procunier, 762 F.2d at 432. To present claims to the Court of Criminal Appeals, a petitioner may either file a petition for discretionary review with the Court of Criminal Appeals after direct appeal, or he may file a post-conviction application for writ of habeas corpus in the state court, which will automatically be forwarded to the Court of Criminal Appeals. See Feist v. Scott, 885 F. Supp. 927, 930 (E.D.Tex. 1995); see also Stones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995) (exhaustion of state remedies may be accomplished either directly or collaterally) citing, Myers v. Collins, 919 F.2d 1074, 1076-77 (5th Cir. 1990); Lowe v. Scott, 48 F.3d 873, 875 (5th Cir.) (noting that a petitioner who seeks to pursue an issue that he failed to raise on direct appeal, must use available state collateral procedures to satisfy the exhaustion requirement), cert. denied, 515 U.S. 1123 (1995). Before a petitioner may be excused from the exhaustion requirement, he must show exceptional circumstances of peculiar urgency. Deters, 985 F.2d at 795.
Either from conviction itself or from the disposition of a pre-conviction application for writ of habeas corpus. See generally TEX CODE CRIM. PROC. ANN. articles 11.08 (habeas corpus writ application to felony after indictment) and 11.09 (habeas corpus writ application to charge of misdemeanor) (Vernon 1977).
See TEX CODE CRIM PROC. ANN. art. 11.07 § 3(b) and (c) (Vernon Supp. 2002) (application for writ of habeas corpus after conviction in a felony case filed in district court and then transmitted to the Court of criminal Appeals).
Applying this exhaustion doctrine to the instant case, it is clear from Montes's petition and other filings, that he has not satisfied this exhaustion requirement. The record in this case does not indicate any special circumstances which would warrant federal court interference in the normal process of charges being filed in state court and proceeding to trial. Furthermore, Montes has not shown that he has even attempted to commence the state habeas corpus procedures provided for under Texas law. Thus, Petitioner has not demonstrated that he should be excused from the exhaustion requirement. He has not shown an absence of available State corrective process or that exceptional circumstances exist that render such process ineffective. As indicated above, Braden does not authorize pretrial habeas interference by federal courts in the normal functioning of a state's criminal processes. Braden, 410 U.S. at 493.
Because Montes has not shown that a ruling from this Court would not preempt the state court from performing its proper function, has not shown that he has exhausted his claims in state court proceedings, and has not shown any "exceptional circumstances" that would excuse the lack of exhaustion, he is not entitled to seek habeas corpus relief, and this petition should be dismissed without prejudice to Montes's right to seek federal habeas corpus relief after the state proceedings are concluded. Under the circumstances it appears summary dismissal is appropriate.
RECOMMENDATION Court, N.D. Texas,
It is therefore RECOMMENDED that Marco Antonio Montes's Petition For Writ of Habeas Corpus be summarily DISMISSED WITHOUT PREJUDICE.
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 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, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations until November 1, 2002. Failure to file written objections within the specified time 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. Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990)
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until November 1, 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.