Opinion
Civil Action No. 4:02-CV-577-Y
November 4, 2002
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 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 under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Tyrhonda M. Scroggins, TDCJ-ID #1083774, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Marlin, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
On January 24, 2002, pursuant to a plea bargain agreement, Scroggins pleaded guilty in state court to possession of cocaine in an amount of more than four grams but less than two hundred grams (Case No. 0805550D). (1 State Habeas R. at 15-23.) In accordance with the plea agreement, the trial court assessed her punishment at ten years' confinement. ( Id. at 24.) Scroggins did not appeal the judgment of conviction. (Federal Pet. at 3.) She did, however, file a post-conviction state application for writ of habeas corpus on June 19, 2002, alleging no evidence or insufficient evidence to support the conviction. (1 State Habeas R. at 7.) The application was denied by the Texas Court of Criminal Appeals without written order on July 31, 2002. Ex parte Scroggins, No. 52,886-01, at cover (Tex.Crim.App. July 31, 2002) (not designated for publication). Scroggins filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on June 26, 2002. 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).
On the same date, Scroggins also pleaded guilty pursuant to a plea bargain agreement to possession of more than one gram but less than four grams of cocaine in Case No. 0806981D. She does not, however, challenge her conviction and/or sentence in that cause. (2 State Habeas R. at 15-22.)
D. ISSUES
Scroggins raises the following issues in two grounds for relief:
1. Her conviction and sentence are illegal under an April 2002 Supreme Court ruling holding that "a jury may only determine terms of conviction and sentence."
2. She received ineffective assistance of counsel because, under federal court rule 36.01-5, counsel must act on the defendant's instructions.
E. RULE 5 STATEMENT
Cockrell argues that Scroggins's claims are, both, unexhausted and procedurally barred because she no longer has an available state-court avenue for raising her claims. (Resp't Answer at 3-6.)F. EXHAUSTION AND PROCEDURAL DEFAULT
The preliminary issue then is whether Scroggins has exhausted her state court remedies as to the claims raised in this habeas corpus proceeding, and, if not, whether the unexhausted claims are procedurally barred as argued by Cockrell.
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). In Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). Thus, the Court of Criminal Appeals must be given a full and fair opportunity to address the claim on its merits, which in turn requires that the applicant present the claim before that court in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
In the instant case, Scroggins did not raise the claims presented herein in her state writ application and, in fact, represents that the claims are being presented for the first time because she just recently became aware of rule 36.01-5 and other "new procedures." (Fed. Pet. at 8.) Thus, Cockrell is correct in her assertion that Scroggins failed to exhaust her federal court claims by presenting them to the Texas Court of Criminal Appeals. See Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
Further, as noted by Cockrell, Scroggins cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in a previous habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice, or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Scroggins has not given any explanation to excuse her default. Nor has she demonstrated that failure to consider her claims will result in a miscarriage of justice, i.e., that she is innocent of the crime for which she was charged and convicted. Accordingly, Scroggins's grounds are procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750-51.
II. RECOMMENDATION
Scroggins's petition for writ of habeas corpus should be denied.
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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until November 25, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and 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. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until November 25, 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, be and hereby is returned to the docket of the United States District Judge.