Opinion
Civil Action No. 4:04-CV-167-A.
June 9, 2004
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 under 28 U.S.C. § 636(b). The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Michelle Rose Nurnberg, TDCJ-CID#1049233, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division and is presently incarcerated at the Gatesville Unit in Gatesville, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On June 25, 2001, Nurnberg pleaded guilty to solicitation of capital murder and was sentenced to seven years' confinement. (Clerk R. at 146.) The Second District Court of Appeals affirmed the trial court's judgment, and the Court of Criminal Appeals refused Nurnberg's petition for discretionary review. Nurnberg v. State, No. 2-01-306-CR (Tex.App.-Fort Worth Sept. 12, 2002, pet. ref'd) (not designated for publication).On January 17, 2003, Nurnberg filed a motion for leave to file an "application for an extraordinary writ of habeas corpus" in the Court of Criminal Appeals, challenging her conviction. TEX. R. APP. P. 72.1. (1 Writ R. at 1.) The Court of Criminal Appeals denied the motion for leave to file. In re Nurnberg, No. 55,207-01 (Tex.Crim.App. Mar. 26, 2003) (not designated for publication). Three months later, Nurnberg filed a motion for leave to file a petition for writ of mandamus, arguing that she was denied the right to timely file a motion for rehearing of her petition for discretionary review. TEX. R. APP. P. 72.1. (2 Writ R. at 2.) The Court of Criminal Appeals denied the motion for leave to file. In re Nurnberg, No. 55,207-02 (Tex.Crim.App. July 30, 2003) (not designated for publication). Seven days before her mandamus motion was denied, Nurnberg filed an application for writ of habeas corpus under article 11.07, challenging her conviction, which the Court of Criminal Appeals returned to the county clerk because it did not comply with the requirements of the rules in that the grounds and facts were not set out on the form. Ex parte Nurnberg, No. 55,207-04 (Tex.Crim.App. Aug. 13, 2003) (not designated for publication); see TEX. R. APP. P. 73.1(a). On December 4, 2003, Nurnberg filed a second motion for leave to file a writ of mandamus, arguing that the trial court should be compelled to properly handle her article 11.07 petition. (5 Writ R. at 2.) The Court of Criminal Appeals denied the motion for leave to file. In re Nurnberg, No. 55,207-05 (Tex.Crim.App. Jan. 14, 2004.)
TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004).
As Dretke explains, no writ application was given the number "55,207-03" because of a computer problem at the Court of Criminal Appeals. (Resp't Answer at 5 n. 3.)
Nurnberg filed her federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on February 25, 2004. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Nurnberg argues that her conviction was unconstitutional because:
1. trial counsel was constitutionally ineffective,
2. appellate counsel were constitutionally ineffective,
3. she was denied the right to appeal and to an appeal bond,
4. she was denied the right to a speedy trial,
5. her guilty plea was involuntary, and
6. she was denied the right to habeas corpus relief in the state courts.
E. EXHAUSTION
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. In Texas, this means the claim must have been presented to the Texas Court of Criminal Appeals in either a petition for discretionary review on direct appeal or in an article 11.07 application on collateral review. Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990). This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present her claims before the state courts in a procedurally proper manner according to the rules of the state courts. Castille v. Peoples, 489 U.S. 346, 351 (1989); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988) (per curiam).Although it appears Nurnberg raised most of her present claims in her motion for leave to file an original petition for habeas corpus relief, she did not follow the normal appellate or post-conviction procedural routes for raising her claims in the Court of Criminal Appeals. Her original habeas corpus application and mandamus petitions were extraordinary writs and were not proper methods of exhaustion. Carter v. Estelle, 677 F.2d 427, 443 n. 11 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). Further, although her noncompliant article 11.07 application is not before this court, it was not presented to the Court of Criminal Appeals in a procedurally correct manner and, thus, cannot satisfy the exhaustion requirement. See Castille, 489 U.S. at 351 (holding when petition raises claim in manner in which merits will not be considered, claim is not fairly presented to state courts, and exhaustion is not satisfied); Satterwhite v. Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989) (same).
Although the terms of § 2254(b)(2) provide that a petition for a writ of habeas corpus may be denied on the merits notwithstanding the petitioner's failure to exhaust his state remedies, complete exhaustion assists the federal courts in their review because federal claims that have been fully exhausted in state courts will necessarily be accompanied by a more complete factual record. Rose v. Lundy, 455 U.S. 509, 518-19 (1982). Exhaustion of state remedies is not required in a federal habeas case if the state corrective process is unavailable or circumstances exist that render such process ineffective to protect the rights of the petitioner. 28 U.S.C. § 2254(b)-(c). Nurnberg may still pursue an application for writ of habeas corpus in the Court of Criminal Appeals before returning to this court once her state remedies have been exhausted. See Slack v. McDaniel, 529 U.S. 473, 486 (2000) (holding subsequent federal habeas petition not impermissibly successive when previous federal petition dismissed for failure to exhaust state remedies); Torres, 943 S.W.2d at 474 (holding if first state habeas application is dismissed for reasons unrelated to the merits of the application, second application is not barred as an abuse of the writ). Nurnberg's arguments that exhaustion would be futile are not persuasive and are not based in fact. E.g., Duckworth v. Serrano, 454 U.S. 1, 3-4 (1981) (per curiam); Thomas v. Collins, 919 F.2d 333, 335 (5th Cir. 1990), cert. denied, 501 U.S. 1235 (1991). (Pet'r Reply at 7-8.)
Accordingly, dismissal of this federal petition for lack of exhaustion is warranted so that Nurnberg can fully exhaust her state remedies and then return to this court after exhaustion has been accomplished.
This court reminds Nurnberg that the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. 28 U.S.C. § 2244(d). Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after either the petitioner's conviction becomes final or the factual predicate of the claims could have been discovered through the exercise of due diligence, whichever is later. Id. § 2244(d)(1). The statute of limitations is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). Thus, Nurnberg is hereby cautioned to return to this court with all due speed as soon as all state remedies have been exhausted.
II. RECOMMENDATION
Nurnberg's petition for writ of habeas corpus should be dismissed without prejudice for failure to exhaust her state court remedies.III. 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 in the United States District Court 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 extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until June 30, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 30, 2004 to serve and file 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, is returned to the docket of the United States District Judge.