Opinion
3:03-CV-2552-M
February 10, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Roach Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-CID) in Childress, Texas. Respondent is the Director of TDCJ-CID. The court has issued process to Respondent in this case.
Statement of the Case: Petitioner pled guilty to possession of a controlled substance with intent to deliver in exchange for a seven-year sentence probated for five years in Criminal District Court No. 5, Dallas County, Texas, Cause No. F98-52061-QL. On February 9, 2001, the trial court revoked Petitioner's probation and reinstated his seven-year sentence. On April 29, 2002, the Fifth District Court of Appeals affirmed Petitioner's conviction and sentence. Swanson v. State, No. 05-01-00337-CR (Tex.App.-Dallas Apr. 29, 2002). The Texas Court of Criminal Appeals refused his petition for discretionary review on September 11, 2002. Swanson v. State. PDR No. 1043-02.
Petitioner subsequently filed three state applications for writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure. (Petition ¶¶ 11 and 23). The first application, filed on June 4, 2001, was dismissed on July 20, 2001, by the Texas Court of Criminal Appeals due to the pendency of the direct appeal. Ex parte Swanson, No. 50, 647-01. Petitioner filed his second application on October 8, 2002, after his PDR was refused. Ex parte Swanson, No. 50, 647-02. However, since that date predated the issuance of a mandate by the intermediate court of appeals, his application was again dismissed due to the pendency of his direct appeal on July 16, 2003. Id. at cover. Petitioner then filed a third application on September 15, 2003, which is currently pending before the Texas Court of Criminal Appeals. See Note 2 infra.
Under Texas law, a judgment is not final until a mandate from the intermediate court of appeals has issued. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000).
In his federal petition, signed on September 11, 2003, Petitioner alleges he is actually innocent of the charges and that his guilty plea was involuntary.
In response to this court's order to show cause, Respondent filed an answer along with the state court record. The answer confirms that Petitioner's first two art. 11.07 applications were dismissed, but disputes Petitioner's assertion that his third art. 11.07 application, No. 50, 647-05, is presently pending before the Texas Court of Criminal Appeals, supported by the affidavit of a deputy clerk of the Court of Criminal Appeals stating that no third art. 11.07 is pending. (Respondent's Mot. to Dism. at 2 and note 3, and Exh. B thereto). He thus seeks dismissal of the petition for failure to exhaust state court remedies. (Id. at 3-6). In the alternative, Respondent contends that the petition should be denied on the merits.
In reply, Petitioner filed a motion to withdraw on January 16, 2004. He requests dismissal of his federal petition without prejudice pending exhaustion of state remedies in state court. He asserts the trial court forwarded his third art. 11.07 application to the Court of Criminal Appeals on December 10, 2003. Findings and Conclusions: It is well settled that a state prisoner must exhaust all available state court habeas corpus remedies before a federal court will consider the merits of his claims. 28 U.S.C. § 2254(b) and (c). The exhaustion requirement is designed to "protect the state court's role in the enforcement of federal law and prevent the disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518 (1982).
The office of the undersigned magistrate judge has verified with the Clerk of the Texas Court of Criminal Appeals and the Clerk of the Dallas County District Court that Petitioner's third art. 11.07 application, challenging the conviction at issue in this case, was forwarded to the Court of Criminal Appeals on December 16, 2003, and received by that Court on December 22, 2003, and assigned Cause No. 50, 647-05.
Petitioner's motion to withdraw correctly notes that he has not satisfied the exhaustion requirement. Although Petitioner raised one of the claims in his petition for discretionary review, he failed to raise that claim in his intermediate-appellate-court brief. See Myers v. Collins. 919 F.2d 1074, 1077 (5th Cir. 1990) (exhaustion requirement is not satisfied if prisoner raises ineffective assistance of counsel claims in Texas Court of Criminal Appeals without first obtaining review by intermediate appellate court). Additionally two of his art. 11.07 applications were dismissed without considering his claims on the merits, and his third application is presently pending. The Texas Court of Criminal Appeals has, thus, not had an opportunity to consider the merits of the claims which Petitioner raises in this action. Accordingly, Petitioner's motion to withdraw should be granted and the petition for a writ of habeas corpus should be dismissed without prejudice. RECOMMENDATION:
The one-year statute of limitations with its statutory tolling provisions, see 28 U.S.C. § 2244(d)(1) and (2), will be applicable to any subsequent petition which Petitioner may file in this court.
For the foregoing reasons, it is recommended that Petitioner's motion to withdraw should be granted and the petition for a writ of habeas corpus should be dismissed without prejudice for failure to exhaust state court remedies.
A copy of this recommendation will be transmitted to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.