Russell v. Cockrell

Full title: CECIL LEE RUSSELL, Petitioner, v. JANIE COCKRELL, Director, Texas…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Nov 1, 2002

No. 2:01-MC-0012 (N.D. Tex. Nov. 1, 2002)

Opinion

No. 2:01-MC-0012

November 1, 2002

REPORT AND RECOMMENDATION TO DENY PETITION REQUESTING LEAVE TO FILE A WRIT OF HABEAS CORPUS

CLINTON E. AVERITTE, United States Magistrate Judge.

Came this day for consideration the "Petition Requesting Leave to File a Writ of Habeas Corpus" filed by petitioner CECIL LEE RUSSELL on October 19, 2001. By his pleading, petitioner requests leave of Court to file a Petition for a Writ of Habeas Corpus challenging a January 25, 1988 conviction which resulted from a guilty plea, pursuant to a plea bargain, for the offense of indecency/sexual assault of a child out of the 251^St Judicial District Court of Potter County, Texas. Petitioner requests leave to file because of sanctions imposed against him which prohibit his filing of any new lawsuits unless leave to file is first obtained from either the United States Magistrate Judge or from an Article III Judge.

From the documents submitted by petitioner, it appears petitioner has discharged, well prior to the filing of the instant motion, the sentence assessed pursuant to the challenged conviction. Petitioner's pleadings disclose he received a 12-year sentence on or about January 11, 1988. Petitioner states he was arrested on April 6, 1987. Therefore, with credit for time in custody from the date of his arrest, petitioner would have completely discharged his sentence on or about April 6, 1999. Inquiry to the Texas Department of Criminal Justice, Institutional Division confirms petitioner did, in fact, discharge his sentence as of April 8, 1999. Petitioner, therefore, does not meet and did not at the time he initially submitted his petition for filing,¹ the custody requirement necessary for federal habeas relief Federal law requires petitioner be "in custody" to pursue federal habeas relief. As this Court cannot grant petitioner the relief he seeks in the habeas application attached to his motion for leave, it would serve no purpose to allow petitioner to file said petition. The petition would be moot under the continuing case and controversy requirement and subject to immediate dismissal.

1 July 24, 2001.

Further, even if movant RUSSELL had not fully discharged his sentence and if the habeas petition were allowed to be filed, it appears the petition would be subject to dismissal as time barred for failure to file the petition within the time permitted by 28 U.S.C. § 2244 (d). Petitioner was convicted on or about January 11, 1988 but did not file the motion for leave to file the habeas application until October 19, 2001 over ten (10) years later.

It is the opinion of the undersigned that petitioner should not be granted leave to file a habeas petition, since any such petition would be subject to summary dismissal for the above-stated reasons.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition Requesting Leave to File a Writ of Habeas Corpus filed by petitioner CECIL LEE RUSSELL be, in all things, DENIED.

INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT

The United States District Clerk is directed to send a copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.

Any party may object to the proposed findings, conclusions, or recommendation within fourteen (14) days after the filing thereof. See 28 U.S.C. § 636 (b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 5(b). Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).