Opinion
No. 3:03-CV-1733-G
December 31, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
Factual Background;
This is a habeas corpus proceeding brought under 28 U.S.C. § 2254. Petitioner is currently incarcerated in the Dawson State Jail and is in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent Douglas Dretke is the Director of TDCJ-CID.
Petitioner titled his petition as a petition for declaratory judgment. Petitioner, however, challenges the denial of his release from custody to mandatory supervision. The petition is therefore properly construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Sumpter v. Johnson, No. 4:01-CV-157E (N.D. Tex. April 18, 2001) (finding declaratory judgment act cannot be used as a substitute for habeas corpus).
Petitioner is currently incarcerated on three convictions. On November 13, 1998, Petitioner was found guilty of burglary of a habitation in the 402nd District Court of Wood County, Texas, cause number 15,901-99. Petitioner was sentenced to five years incarceration. On November 10, 2000, Petitioner pled nolo contendere to possession of a firearm by a felon in the 5th District Court of Cass County, Texas, cause number 2001-F-00041. Petitioner was sentenced to five years imprisonment. On October 31, 2001, Petitioner pled guilty to burglary of a habitation in the 8th District Court of Hopkins County, Texas, cause number 0116143. Petitioner was sentenced to five years imprisonment.
Petitioner does not challenge any of his convictions in this petition. Petitioner instead argues that Respondent has unlawfully denied him release to mandatory supervision. Specifically, Petitioner argues: (1) the Board of Pardons and Paroles ("Board") misinterpreted Tex. Gov't Code 508.149(b) when it denied him release to mandatory supervision; (2) Tex. Gov't Code 508.149(b) is unconstitutionally vague and allows impermissible selective enforcement; (3) Petitioner's due process rights were violated when the Board denied his release to mandatory supervision without providing him with notice and an opportunity to be heard; (4) the Board failed to show that Petitioner's accrued good time was not an accurate reflection of his rehabilitation; and (5) the Board's interpretation of Tex. Gov't Code § 508.149(b) allows the Board to violate the Separation of Powers doctrine and impermissibly assess punishment, invading the judicial branch.
Tex. Gov't Code § 508.149(b) states:
(b) An inmate may not be released to mandatory supervision if a parole panel determines that:
(1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and
(2) the inmate's release would endanger the public.
(West 2003).
Discussion:
A petitioner must fully exhaust state remedies before seeking federal habeas relief. See 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). 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. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). 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); Bautista, 793 F.2d at 110. The exhaustion requirement applies to prisoners challenging a denial of release to mandatory supervision. See Dodson v. Cockrell, No. 4:02-CV-560-Y, 2002 U.S. Dist. WL 31495992, at *2 (N.D. Tex. Nov. 5, 2002) (finding no exhaustion in the context of a denial of release to mandatory supervision); Exparte Geiken, 28 S.W.3d 553, 556 (Tex.Crim.App. 2000) (holding that an "[applicant's] habeas corpus claims alleging illegal confinement arising after his felony conviction, but not contesting the validity of the judgment, maybe raised under Code of Criminal Procedure Art. 11.07.").
Petitioner did not file a petition for discretionary review and did not file any state applications for writ of habeas corpus regarding his denial of release to mandatory supervision. He therefore has not presented his claims to the Texas Court of Criminal Appeals. Petitioner's claims should be dismissed for failure to exhaust his state remedies.
RECOMMENDATION
The Court recommends that the petition be dismissed without prejudice for failure to exhaust state remedies.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on Petitioner. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).