Opinion
3:04-CV-0101-G
February 10, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for a writ of habeas corpus brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently incarcerated at the Gurney Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) in Tennessee Colony, Texas. Respondent is the Director of the TDCJ-CID.
Statement of the Case: Following his plea of guilty to the offense of conspiracy to knowingly and intentionally possess with intent to distribute marijuana, Petitioner was sentenced to sixty-five months imprisonment in the Bureau of Prisons (BOP), and a four-year term of supervised released. United States v. Bruce Dell Patton. 3:98-cr-020 (S.D. Tex. Nov. 30, 1998). On March 14, 1999, Petitioner pled guilty pursuant to a plea bargain agreement in the 282nd Judicial District Court of Dallas County, Texas, Cause Nos. F92-39419-HS, F92-57287-HS, and F92-39418-VS. (Petition, filed on December 1, 2003, at ¶¶ 1-4). Punishment was assessed at eight years imprisonment to run concurrent with his previously imposed federal sentence. (Id. and Original Civil Rights Complaint filed on November 6, 2003, at p. 4 and handwritten attachment). Petitioner served four years and seven months in a federal correctional institution, and six months in a federal halfway house. (Original Civil Rights Complaint at 4 and handwritten attachment). He was then erroneously released under the supervision of the Federal Parole Board Division, allegedly because TDCJ-CID failed to take him in its custody despite notification of his upcoming release. (Id.). The Texas Board of Pardons and Parole (Board) revoked his erroneous release on parole on February 13, 2003. (Petition at ¶ 13).
The federal criminal docket sheet reflects Petitioner's middle name as "Dell" instead of "Dale."
In this federal habeas action, Petitioner challenges the revocation of his parole. He alleges he did not violate the terms of his parole, rather the revocation was caused by his erroneous release on parole/supervised release. He further alleges he was denied appointment of counsel at his revocation hearing, and his conduct as a productive and law abiding citizen while on parole entitles him to be "released back to supervise[d] release." (Petition at ¶ 20). Findings and Conclusions: It is well settled that a state prisoner must exhaust all available state habeas remedies before a federal court should consider the merits of his claims. Rose v. Lundy, 455 U.S. 509, 518 (1982); 28 U.S.C. § 2254(b) and (c). The exhaustion requirement applies even to a petitioner who seeks to challenge the revocation of his parole. Serio v. Members of Louisiana State Board of Pardons, 821 F.2d 1112, 1118 (5th Cir. 1987). In order to exhaust, a petitioner must "fairly present" all of his claims to the highest state court for review. Shute v. State of Texas. 117 F.3d 233, 237 (5th Cir. 1997); Deters v. Collins. 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985). Texas prisoners may satisfy that requirement by presenting both the factual and legal substance of each of their claims to the Texas Court of Criminal Appeals in an action for a state writ of habeas corpus pursuant to Tex. Code Crim. Proc. Ann. Art. 11.07 (Vernon Supp. 2004). Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432; see also Myers v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990).
Petitioner initially filed this action on November 6, 2003, in the Eastern District of Texas, Tyler Division, using a civil rights complaint form dated April 11, 2003. After construing the complaint as a petition for writ of habeas corpus, and granting Petitioner leave to file a habeas corpus petition, the Eastern District transferred this action to the Northern District, where Petitioner was originally convicted and sentenced. See 28 U.S.C. § 2241(d); Carmona v. Andrews, ___ F.3d ___, 2004 WL 63469, *3 (5th Cir. Jan. 29, 2004) (holding that jurisdiction for a habeas corpus petition challenging parole revocation lies in either the District for the place of incarceration or the District for the place of original conviction and sentence).
A review of the petition reflects that Petitioner has not satisfied the exhaustion requirement. In paragraph 14, Petitioner admits that he has not challenged the revocation of his parole in any state court. (Pet. ¶ 14). Accordingly, the petition should be dismissed without prejudice for failure to exhaust state habeas corpus remedies. See Rose v. Lundy, supra. RECOMMENDATION:
The court cautions Petitioner that the recent amendment to the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court,see 28 U.S.C. § 2244(d), and that this provision will be applicable to any subsequent petition that Petitioner may file in this court.
For the foregoing reasons, the magistrate judge recommends that the District Court dismiss the petition for writ of habeas corpus without prejudice for failure to exhaust state court remedies. The Clerk will mail a copy of this recommendation to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.