Opinion
CIVIL ACTION NO. 4:03-CV-068-A
May 23, 2003
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), 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 under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Steven Ray Russell, TDCJ-ID #1085477, is incarcerated in the Moore Unit of the Texas Department of Criminal Justice, Institutional Division in Bonham, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On January 29, 1999, a jury found Russell guilty of indecency with a child by contact and sentenced him to 15 years' confinement. (Clerk R. at 80.) The Second District Court of Appeals affirmed the trial court's judgment, and the Texas Court of Criminal Appeals refused Russell's petition for discretionary review on January 9, 2002. Russell v. State, No. 2-99-035-CR (Tex.App.-Fort Worth Aug. 2, 2001, pet. ref'd). Russell did not file a petition for certiorari with the United States Supreme Court or an application for habeas corpus relief with the Court of Criminal Appeals. Russell filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on January 27, 2003. See Spotville v. Cain, 149 F.3d 374 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). After being granted one extension, Cockrell filed her answer to Russell's petition on April 24, 2003.
Although Waters initially filed his federal petition in the United States District Court for the Northern District of Texas, Dallas Division, the petition was transferred to this division. 28 U.S.C. § 2241 (d).
D. ISSUES
Russell raises four issues:
1. The evidence was legally insufficient to show that he had the intent to arouse or gratify his sexual desire.
2. The State's jury argument was prejudicial and inflammatory.
3. His trial was unconstitutional based on jury misconduct.
4. The trial court forced the jury to reach a verdict.
E. 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 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). A Texas state 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 (5th Cir. 1986); Richardson, 762 F.2d at 432; see also Stones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995) (exhaustion of state remedies may be accomplished either directly or collaterally); Lowe v. Scott, 48 F.3d 873, 875 (5th 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 clam 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).Although Russell raised in his petition for discretionary review his claims that the State's jury argument was prejudicial and that the jury engaged in misconduct, his claims that the evidence was legally insufficient and that the trial court coerced the jury into a verdict have not been properly exhausted in the state courts. Generally, a federal habeas corpus petition that contains both exhausted claims and unexhausted claims, i.e., a mixed petition, should be dismissed to allow the petitioner to return to the state forum to present his unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982).
It is possible that these two claims are not properly exhausted because, in his petition for discretionary review, Russell framed these issues as attacks on the state court of appeals' erroneous decision and not as constitutional errors, which is how he casts them in the instant petition. (PDR at 2.) See Picard, 404 U.S. at 278.
The total exhaustion rule of Rose and its progeny is no longer binding under the federal habeas corpus statutes. The law now provides that an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. 28 U.S.C. § 2254 (b)(2). Under this provision, a federal court in its discretion may review on the merits a habeas corpus application containing unexhausted claims. Because this authority is discretionary only, a federal court is not required to exercise this new prerogative and may still defer to the state courts where state consideration of an unexhausted claim would be appropriate. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).
Accordingly, dismissal of this federal petition for lack of exhaustion is warranted so that Russell can fully exhaust his state court remedies and then return to this court after exhaustion has been accomplished. This court reminds Russell 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 April 9, 2002 — 90 days after the Court of Criminal Appeals refused Russell's petition for discretionary review. Flanagan v. Johnson, 154 F.3d 196, 197, 199 (5th Cir. 1998). 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, Russell is hereby cautioned to return to this court with all due speed as soon as all state remedies have been exhausted. It appears that some or all of the claims raised by Russell might be time-barred under § 2244(d) if they were to be asserted in a later federal petition.
Contrary to Russell's assertions, a state habeas corpus application is still an available remedy and would not be futile. (Pet'r Reply Br. at 5-6.)
To avoid dismissal of his current petition, Russell could voluntarily dismiss his unexhausted grounds with prejudice. Earl v. Estelle, 502 F. Supp. 406, 408 (N.D. Tex. 1980). Such action, however, would not preclude a later finding that his remaining claims are, likewise, unexhausted. See supra note 2.
II. RECOMMENDATION
It is therefore recommended that Russell's petition be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar which 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 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 13, 2003. 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 13, 2003 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.