Opinion
No. 3-04-CV-2757-N.
February 16, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Lester Jon Ruston, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed without prejudice for failure to exhaust state remedies.
I.
On February 8, 2001, petitioner pled guilty to retaliation, a third-degree felony. The trial court deferred an adjudication of guilt and placed petitioner on probation for five years. On March 8, 2001, the state filed a motion to proceed with an adjudication of guilt. Petitioner countered by filing an application for writ of habeas corpus in state court. Thereafter, on April 12, 2001, the state sought leave to withdraw its motion to proceed. The trial court allowed the state to withdraw its motion, but modified the conditions of petitioner's probation.
Petitioner immediately filed a notice of appeal. While this appeal was pending, the Texas Court of Criminal Appeals dismissed petitioner's state writ without comment. Ex parte Ruston, No. 49,101-01 (Tex.Crim.App. Apr. 25, 2001). On August 27, 2001, the court of appeals dismissed the appeal for want of jurisdiction. Ruston v. State, No. 05-01-01276-CR (Tex.App.-Dallas, Aug. 27, 2001, no pet.).
The court of appeals held that "[t]o the extent appellant seeks to appeal the trial court's order deferring adjudication of guilt, the April 13, 2001 notice of appeal is untimely. (Citations omitted). To the extent appellant seeks to appeal the modification of the conditions of community supervision, no appeal is permitted. (Citations omitted)." Ruston, No. 05-01-01276-CR, op. at 1.
On October 3, 2001, petitioner filed a federal writ challenging his guilty plea and the conduct of the state court proceeding. Among the claims asserted by petitioner were: (1) the arresting officer conspired with the trial judge to violate his constitutional rights; (2) the trial court tampered with and falsified the appellate record; (3) his arrest was based on a fraudulent affidavit; (4) his guilty plea was coerced; and (5) he was denied the right to self-representation and appointed counsel. Because none of these claims were considered on the merits by the Texas Court of Criminal Appeals, the writ was dismissed for failure to exhaust state remedies. Ruston v. State of Texas, No. 3-01-CV-1977-R (N.D. Tex. Jul. 25, 2002), appeal dism'd, No. 02-10922 (5th Cir. Dec. 4, 2002).
More than 23 months after the dismissal of his federal writ, petitioner filed two writs of mandamus in the Texas Court of Criminal Appeals. Both writs were denied. In re Ruston, No. 49,101-04 (Tex.Crim.App. Sept. 15, 2004); In re Ruston, No. 49,101-05 (Tex.Crim.App. Dec. 22, 2004). Petitioner then filed this action in federal court.
II.
Petitioner reurges essentially the same grounds raised in his first federal writ. By order dated January 28, 2005, the court sua sponte questioned whether this case was time-barred and invited petitioner to address the limitations issue in a written reply. In his reply filed on February 11, 2005, petitioner states that he is not challenging a "final conviction" and refers to unspecified due process violations in connection with a probation revocation in July 2004. Like his first federal writ, petitioner did not raise any of these claims in a petition for discretionary review or a state writ of habeas corpus. The court therefore determines that this case should be dismissed for failure to exhaust state remedies.
A.
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). This entails submitting the factual and legal basis of any claim to the highest available state court for review. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 103 S.Ct. 1508 (1983). A Texas prisoner must present his claims to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus under Tex. Code Crim. Proc. art. 11.07. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986). A federal habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990), cert. denied, 111 S.Ct. 2862 (1991); Bautista, 793 F.2d at 110.
B.
Petitioner was placed on five years deferred adjudication probation after pleading guilty to retaliation. Judgment was entered on February 8, 2001 and no appeal was taken at that time. On April 12, 2001, the court modified the conditions of petitioner's probation. Petitioner timely appealed that order, but his appeal was dismissed for want of jurisdiction on August 27, 2001. Instead of seeking further review in the Texas Court of Criminal Appeals, petitioner sought federal habeas relief on October 3, 2001. His writ was dismissed without prejudice on July 25, 2002. No further action was taken by petitioner until he filed an original mandamus proceeding in state court in July 2004.
To the extent petitioner challenges his guilty plea and the order placing him on deferred adjudication probation, his claims may be barred by the AEDPA statute of limitations. See Wilkinson v. Cockrell, 240 F.Supp.2d 617, 622 (N.D. Tex. 2002) (limitations period runs from date petitioner is placed on deferred adjudication probation). But cf. Jamme v. Cockrell, 2002 WL 1878403 at *2-3 (N.D. Tex. Aug. 12, 2002) (operative date for limitations purposes is when trial court proceeds with adjudication of guilt). The Fifth Circuit has not directly spoken on this issue.
Although it is not clear whether petitioner's probation has been revoked or if his conviction is "final," it is apparent that none of the claims raised in his federal writ have been presented to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus under Tex. Code Crim. Proc. art. 11.07. As a result, federal habeas review is not proper.
The writs of mandamus filed by petitioner in July 2004 and September 2004 are not a proper method of exhaustion. See Nurnberg v. Dretke, 2004 WL 1267103 at *2 (N.D. Tex. Jun. 9, 2004), citing Carter v. Estelle, 677 F.2d 427, 443 n. 11 (5th Cir. 1982), cert. denied, 103 S.Ct. 1508 (1983).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust state remedies.