Opinion
3:01-CV-147-R.
February 20, 2001
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 Court in implementation thereof, this cause 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 pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently confined at the Jester IV Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Richmond, Texas. Respondent is Gary Johnson, Director of the TDCJ-ID. The court has not issued process in this case.
Statement of the Case: Petitioner initially filed this petition on the court-approved form for a motion under 28 U.S.C. § 2255 to vacate, set aside or correct a sentence by a person in federal custody. The petition reflects, however, that Petitioner is in state custody and that he seeks to challenge his confinement arising from a 1982 robbery conviction from the 194th Judicial District Court in Dallas County, Texas. (Petition ¶¶ 1-4). Petitioner alleges he received a thirty-year sentence, which was later "exonerated by admiralty law without parole [on] April 4, 1994." (Petition ¶ 3). He was, subsequently, arrested for driving while intoxicated and thereafter confined in the TDCJ-ID.
Because Petitioner does not appear to be or to ever have been in federal custody, the court initially opened this case as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which is the habeas corpus provision applicable to individuals in state custody.
On February 1, 2001, the court informed Petitioner that his petition did not comply with Rule 2(c) of the Rules Governing § 2254 cases. That rule provides in part that the petition "shall specify all the grounds for relief which are available to the petitioner . . . and shall set forth in summary form the facts supporting each of the grounds thus specified." The court noted that, even when liberally construed, the petition is unintelligible. The procedural history of his criminal case set out in Valentine's pleadings is very confusing and the twelve grounds for relief are equally difficult to comprehend. The court's order granted Petitioner thirty days to submit an amended petition on the court-approved form for § 2254 proceedings.
On February 5, 2001, Petitioner submitted a motion to stay pursuant to § 2255, requesting the suspension of the rules pursuant to § 2254. Alternatively, he requests dismissal without prejudice. In support of his motion, Petitioner states he "has not consented to proceed by habeas corpus and intend[ed] to file under 28 U.S.C. § 2255." (Motion at 1). He explains that he is challenging "the continuation of his confinement and not the [underlying] conviction." (Motion at 1). Petitioner is "currently unlawfully restrained under admiralty time prior to Sept[ember] 27, 1982," he has "never been on parole, [and] has no way of relief to receive calender credit on confinement. . . . originat[ing] under admiralty law. . . ." (Id. at 1-2).
On February 12, 2001, Petitioner submitted an additional motion seeking to dismiss or, alternatively, to reinstate his motion under § 2255. Petitioner also filed an "Omnibus Motion" for relief.
Findings and Conclusions: The court has characterized the petition in this case as arising under 28 U.S.C. § 2254 rather than 28 U.S.C. § 2255. See note 1, supra. Petitioner requests the court to review the accrual of his "calender credit" and grant him immediate or speedier release from prison. State prisoners who seek immediate or speedier release from prison fall under 28 U.S.C. § 2254. See Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000) (state prisoners who allege that they were improperly denied good-conduct credit, that if restored, would have resulted in their immediate or sooner release from prison, fall under § 2254). Thus the petition in this case arises under § 2254 rather than § 2255, which is applicable only to federal prisoners. Therefore, the rules applicable to § 2254 cases govern the instant petition and cannot be suspended.
Because Petitioner cannot proceed under § 2255, his motion to voluntarily dismiss the petition should be granted. See Fed.R.Civ.P. 41(a).
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court enter its order granting Petitioner's motion to dismiss and dismissing the instant petition without prejudice pursuant to Fed.R.Civ.P. 41(a).
The Clerk will mail a copy of this recommendation to Petitioner.
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 to Douglass 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.