Opinion
Civil Action No. 4:04-CV-0148-A.
July 14, 2004
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 pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Travis Mark Smith, TDCJ-ID #00684080, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is confined at the Lynaugh Unit in Fort Stockton, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. PROCEDURAL HISTORY
Smith is serving fifteen-year state sentences for three 1991 convictions for theft, forgery by passing a check, and forgery by possession of a check with intent to pass out of Tarrant County, Texas. (Resp't Answer, Exhibit A at 1-12.) He is also serving twenty-year state sentences for two 1994 convictions for credit card abuse and theft out of Tarrant County. (8State Habeas R. at 38-39.)
"8State Habeas R." refers to the state court record for Smith's state habeas Application No. 40,220-08.
On November 28, 2001, the Texas Board of Pardons and Paroles (the Board) ordered Smith released under mandatory supervision. ( Id. at 34.) He was released from TDCJ on December 7, 2001. (Resp't Answer, Exhibit F.) On April 15, 2002, a pre-revocation warrant was issued for his arrest, alleging violations of the terms and conditions of his release. (8State Habeas R. at 32-33.) After a hearing, the Board revoked his mandatory supervision on May 30, 2002, thereby forfeiting all his good and work time credits previously accrued while incarcerated and all time served on mandatory supervision. ( Id. at 34, 50-58.)
It is noted that Smith was released on parole in 1992, but his parole was revoked in 1994 as a result of his 1994 criminal convictions. (Resp't Answer, Exhibit B.)
Smith pursued his administrative remedies through the prison's grievance and time credit dispute resolution procedures to no avail. ( Id. at 50-61-66; Resp't Answer, Exhibit F.) He has also sought state and federal habeas relief. According to the state court papers, he has filed seven state applications for writ of habeas corpus. Ex parte Smith, Applications Nos. 40,220-02 through 40,220-08. The first was filed on August 19, 1999, prior to his release to mandatory supervision in 2001, seeking "full credit of his good conduct time credit during his sentence" and "full discharge from custody" at the time of his mandatory supervision release date. The application was denied without written order by the Texas Court of Criminal Appeals on September 29, 1999. Ex parte Smith, Application No. 40,220-02. After the revocation of his mandatory supervision in May 2002, Smith filed five state habeas applications, challenging each of his five convictions, individually, on substantive grounds, which were denied without written order by the Texas Court of Criminal Appeals on August 13, 2003. Ex parte Smith, Application Nos. 40,220-03 through 40,220-07. On November 3, 2003, Smith filed his seventh state habeas application, raising the issues presented herein, which was dismissed on January 14, 2003 by the Texas Court of Criminal Appeals as successive under article 11.07, § 4 of the Texas Code of Criminal Procedure. See Ex parte Smith, Application No. 40,220-08, at cover.
Smith has filed two federal petitions for writ of habeas corpus in this court. The first was filed following the denial of state habeas relief in 1999, and was dismissed by the district court for want of jurisdiction as premature on August 3, 2000. Smith v. Johnson, Civil Action No. 4:99-CV-0990-E. The instant federal petition for writ of habeas corpus was filed on February 22, 2004.
A pro se habeas petition is filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
Smith raises the following grounds for relief:
(1) His due process rights were violated when he was "released inelligablely [sic] and forcefully" to mandatory supervision on December 7, 2001 and when he was "unlawfully violated for a technical violation of said unlawful release and sent back" to TDCJ;
(2) His "illegal" release and subsequent "illegal" revocation have "punitively" extended his twenty-year sentences;
(3) The Board conducted an "illegal and improper" parole revocation hearing because he was not "lawfully" eligible for mandatory supervision at the time of his release; and
(4) He is entitled to 1005 days calendar time served on his 1991 sentences and 11 years, 9 months, and 15 days of his previously earned good time credits "unlawfully taken" by TDCJ. (Federal Pet. at 7-8.)
E. RULE 5 STATEMENT
Dretke does not contest that Smith exhausted his claims, but, instead, maintains that the claims are procedurally defaulted. (Resp't Answer at 4.)
F. PROCEDURAL DEFAULT
Dretke contends Smith's claims are procedurally barred because the Texas Court of Criminal Appeals dismissed Smith's only relevant state habeas application as successive under article 11.07, § 4 of the Texas Code of Criminal Procedure. (Resp't Answer at 5-7.) That provision prohibits an applicant from filing a successive state habeas application raising issues that existed at the time of a previous habeas application and could have been raised therein. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2004); Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994). Procedural default bars federal habeas review if a state court clearly and expressly bases its dismissal of a prisoner's claims on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997). The Fifth Circuit has recognized that article 11.07, § 4 is an adequate and independent state procedural ground to bar federal habeas review. See Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995).
Smith argues that because the relevant state habeas application did not pertain to "the validity of the judgment or the prosecution" and because the state court "has never at any time made any assertation [sic] as to the validity of [his] complaint collaterally in any form," the state court abused its discretion by dismissing his state habeas application under article 11.07, § 4. (Pet'r Response at 4-5.) In essence, Smith is arguing that the state court has misapplied its own law governing successive petitions. However, a federal court does not have license to question a state court's finding of procedural default, if based upon an adequate and independent state ground. See Smith, 216 F.3d at 523. Therefore, assuming the state court properly applied its own law to the case, Smith may overcome the state procedural bar only by demonstrating both good cause for the procedural default and actual prejudice as a result of the alleged violations of federal law.
A petitioner may also overcome a procedural bar by demonstrating that failure to consider his claims will result in a fundamental miscarriage of justice. Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997). "[T]he fundamental miscarriage of justice exception [however] is confined to cases of actual innocence, where the petitioner shows, as a factual matter, that he did not commit the crime of conviction," and is thus inapplicable in the context of this case. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (internal quotations and citations omitted).
In an apparent effort to establish cause for his default, Smith alleges that the "actual predicate" of his claims "was not perfected until the Parole Board made their decision with reference to reopen hearing on March 20, 2003" and he had exhausted his state and administrative remedies as "mandated and required of any habeas review." (Pet'r Response at 4; Resp't Answer, Exhibit D.) The record does reflect that the Board voted to deny Smith's motion to reopen his revocation hearing, postmarked June 19, 2002, on May 20, 2003. (Resp't Answer, Exhibit D.) It also reflects that TDCJ received two time credit dispute resolution forms on September 20, 2002 and January 2, 2003, and that TDCJ's Custodian of Records notified Smith on February 27, 2003 and August 1, 2003, respectively, that there were no errors in his time calculations. (8State Habeas R. at 62-63; Resp't Answer, Exhibit F.) Thus, it appears the factual and legal bases for Smith's claims were apparent, and exhaustion of his administrative remedies had been or could have been accomplished, at the time he filed his five previous state habeas applications in June and July of 2003 and Smith could have included the claims in those actions. Accordingly, Smith has failed to demonstrate just cause for his failure to raise his claims in a proper manner before the state's highest court. Because Smith has failed to show sufficient cause for his state procedural default, a "prejudice" analysis is not necessary. See Glover v. Cain, 128 F.3d 900, 904 n. 5 (5th Cir. 1997).
The record also reflects that Smith pursued TDCJ's grievance procedures in July and August 2003, however a complete record of Smith's Step 1 and Step 2 grievance forms and TDCJ's determination were not provided by either party. (8 State Habeas R. at 72-73.)
II. RECOMMENDATION
Smith'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 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 August 5, 2004. 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 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 August 5, 2004, 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, 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.