Price v. Cockrell

Full title: DALE LEE PRICE, PETITIONER, v. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: May 30, 2002

Civil Action No. 4:02-CV-073-A (N.D. Tex. May. 30, 2002)

Opinion

Civil Action No. 4:02-CV-073-A

May 30, 2002

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, United States Magistrate Judge.

This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 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:

I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.

B. PARTIES

Petitioner Dale Lee Price, TDCJ-ID #1030071, is currently confined at the Sanchez Unit of the Texas Department of Criminal Justice, Institutional Division in El Paso, Texas.

Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.

C. PROCEDURAL HISTORY

Price was indicted for one count of possession of heroin possession of cocaine. (Clerk R. at 3.) On February 28, 2001, a jury both counts and assessed punishment at 20 years' confinement on each count. ( Id. at 90.) On March 1, 2001, the trial court sentenced Price to 20-year concurrent terms, which were enhanced based on Price's two prior felony convictions. ( Id. at 3, 90-91.) That same day, Price filed a notice of appeal. ( Id. at 92.)

On May 19, 2001, Price filed a federal petition for habeas corpus relief attacking his convictions, which the United States District Court for the Northern District of Texas, Fort Worth Division, dismissed without prejudice for failure to exhaust state remedies because he had not filed a state habeas application and because his direct appeal was still pending. Price v. Scott, No. 4:01-CV-524-Y (N.D. Tex. June 29, 2001). On August 2, 2001, the Second District Court of Appeals dismissed Price's appeal on his motion. Price v. State, No. 2-01-104-CR (Tex.App.-Fort Worth Aug. 2, 2001, no pet.) (not designated for publication); see TEX. R. App. P. 42.2(a). Price then filed a state habeas corpus application on August 23, 2001, which the Texas Court of Criminal Appeals dismissed with the notation "direct appeal pending." Ex parte Price, No. 12,945-11 (Tex.Crim.App. Oct. 17, 2001) (not designated for publication).¹ The intermediate court of appeals had issued mandate six days earlier on October 11, 2001. (Pet'r Reply Br. at Ex. 3.)²

1 Price filed ten previous state habeas applications that challenged his 1974 robbery by-assault-conviction, his 1983 robbery-with-bodily-injury conviction, and his 1988 aggravated-robbery conviction. Ex parte Price, Nos. 12, 945[-01]-12, 945-10 (Tex.Crim.App. Sept. 14, 1983-Jan. 5, 2000) (not designated for publication).

2 This fact was also confirmed by phone with the Clerk's Office of the Second District Court of Appeals.

D. RULE 5 STATEMENT

Cockrell asserts that Price has failed to exhaust his state court remedies as to the claims presented in this federal petition and, therefore, moves for dismissal.

E. ISSUES

Price raises the following grounds for relief:

1. The complaint was invalid and does not support the information.

2. There is a fatal variance between the complaint and the information.

3. The evidence was legally and factually insufficient to show Price had possession of the drugs.

4. The State impermissibly referred to Price's prior convictions during voir dire.

5. The offense report is false.

6. The sentence is statutorily impermissible for a state jail felony.

7. His warrantless arrest was unconstitutional because there was no probable cause to detain him.

F. EXHAUSTION

Issues raised in a federal habeas corpus petition must have been fairly presented to the state courts and thereby exhausted. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). An applicant's federal writ of habeas corpus shall not be granted unless the applicant exhausted his state court remedies. 28 U.S.C. § 2254(b). A claim must be presented to the highest court of the state to satisfy the exhaustion-of-state-court-remedies requirement. O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999); Richardson v. Procunier, 762 F.2d 429, 430 (5^th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5^th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). A Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review on direct appeal or a state habeas corpus application. Bautista v. McCotter, 793 F.2d 109, 110 (5^th Cir. 1986); Richardson, 762 F.2d at 432; see also Stones v. Hargett, 61 F.3d 410, 415 (5^th Cir. 1995) (exhaustion of state remedies may be accomplished either directly or collaterally); Lowe v. Scott, 48 F.3d 873, 875 (5^th 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). A claim is fairly presented only if the petitioner relies upon identical facts and legal theories in both the state court proceeding and the action for federal habeas corpus relief. Picard v. Conner, 404 U.S. 270, 278 (1971).

Cockrell correctly asserts that the claims of this federal petition have not been properly exhausted in the state courts. It is unclear what claims Price would have raised in his direct appeal because he voluntarily dismissed his appeal before he filed a brief. But the claims he raises in the instant petition are the same claims he raised in his state habeas application. However, the Court of Criminal Appeals dismissed the application because his direct appeal was pending, i.e., mandate had not issued, when he filed the application. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (holding Court of Criminal Appeals has no jurisdiction over habeas application if it is filed before mandate issues in applicant's direct appeal). Under Texas law, a dismissal means the Court of Criminal Appeals declined to consider the claim for reasons unrelated to the claim's merits. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). The facts regarding Price's claims have not been developed. Although the terms of § 2254(b)(2) provide that an petition for a writ of habeas corpus may be denied on the merits notwithstanding the petitioner's failure to exhaust his state court 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 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). Price may still pursue an application for writ of habeas corpus in the Court of Criminal Appeals and then return to this court once his 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).

Price argues that state remedies are inadequate because the Court of Criminal Appeals dismissed his first state habeas application on October 17, 2001 on the basis of his pending appeal even though mandate issued six days before the dismissal. (Pet'r Reply Br. at 6-7.) Price's appeal was still pending, in that mandate had not issued, on August 23, 2001 when Price filed his state habeas application. Thus, the dismissal was appropriate, and Price is free to again file his state habeas application with the Court of Criminal Appeals now that the dismissal of his appeal is final. Accordingly, dismissal of this federal petition for lack of exhaustion is warranted so that Price can fully exhaust his state court remedies and then return to this court after exhaustion has been accomplished.³

3 This court reminds Price 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 the petitioner's conviction becomes final. Id. § 2244(d)(1). In this case, it appears that the limitations period began to run on November 17, 2001 — 30 days after Price's appeal was dismissed. United States v. Thomas, 203 F.3d 350, 354-55 (5^th Cir. 2000). 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, Price is hereby cautioned to return to this court with all due speed as soon as all state remedies have been exhausted.

II. RECOMMENDATION

It is recommended that Price's petition for writ of habeas corpus be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar that may apply.

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 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, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until June 19, 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 Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until June 19, 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, a 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.