Opinion
CIVIL ACTION NO. 5:02-CV-020-C.
April 27, 2002
ORDER
Petitioner Martin Rodriguez, acting pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on February 4, 2002. Respondent Cockrell filed an Answer with Brief in Support and a copy of Petitioner's relevant state court records. Petitioner has not filed a response.
Respondent has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 140th Judicial District Court of Lubbock County, Texas, in cause number 96-423, 446 styled The State of Texas v. Martin Rodriguez. Pursuant to a plea bargain agreement with the state, Petitioner pleaded guilty on May 22, 1997, to the felony offense of burglary of a habitation with intent to commit indecency with a child. The trial court sentenced him to ten years' incarceration in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), but suspended the sentence and placed him on community supervision (probation) for ten years. The state subsequently filed a motion to revoke probation and following a hearing, the trial court revoked Petitioner's probation on November 21, 2000, and sentenced him to six years' incarceration in the TDCJ-ID.
Petitioner did not appeal his conviction and sentence or file a petition for discretionary review. On August 15, 2001, however, Petitioner filed a state habeas application requesting that TDCJ-ID give him credit for time spent in the Lubbock County Jail between June 4, 1997, and January 5, 1999. The Texas Court of Criminal Appeals dismissed the application on October 10, 2001, pursuant to Section 501.0081(b) of the Texas Government Code.
By Order dated May 29, 2001, the trial court ordered that Petitioner be given credit for time served in the Lubbock County Correctional Facility between June 4, 1997, and January 5, 1999.
In his federal petition, Petitioner complains that the TDCJ-ID has failed to give him credit for the time spent in Lubbock County between June 4, 1997, and January 5, 1999, despite the trial court's order of May 29, 2001.
Respondent requests that the petition be dismissed for Petitioner's failure to exhaust his state court remedies as required by 28 U.S.C. § 2254 (b).
"A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief." Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)). Pursuant to 28 U.S.C. § 2254 (b)1)(A) and (c), a state prisoner must exhaust all available state court remedies before a federal court should consider the merits of his claim. Furthermore, "[a] state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims." Coleman v. Thompson, 501 U.S. 722, 731 (1991); Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998).
A prisoner challenging the calculation of his time credits in the State of Texas must exhaust his state administrative remedies as required by Tex. Gov't Code § 501.0081 before filing a state habeas application. See Ex parte Stokes, 15 S.W.3d 532 (Tex.Crim.App. 2000) ("All persons seeking time credit relief in an application filed pursuant to Art. 11.07, § 3, filed in the district clerk's office on or after January 1, 2000, must show that a written decision has been obtained [from the office of time credit resolution for the Texas Department of Criminal Justice] or that he is within 180 days of release according to current department records, or must allege that he sought resolution of his credit complaint more than 180 days before the application was filed."). Petitioner has demonstrated that he did seek relief from the TDCJ Office of Time Credit Resolution after his first state habeas application was dismissed for failure to comply with § 501.0081, but he has failed to file a second state habeas application. Thus, he has failed to demonstrate that he has exhausted his state court remedies.
Moreover, the Court notes that Respondent also argues that Petitioner's claim is moot because TDCJ-ID states that Petitioner Rodriguez was given credit for the time between June 4, 1997, and January 5, 1999, following a notice sent to the TDCJ Records Office from Lubbock County on July, 11, 2001. Petitioner has failed to respond to this argument.
Accordingly, the Court finds that Petitioner's Petition for Writ of Habeas Corpus should be dismissed without prejudice for failure to exhaust state court remedies and alternatively as moot.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied.