Opinion
CIVIL ACTION NO. 4:03-CV-041-Y
May 2, 2003
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
At the time he filed this petition, petitioner Chatney Todd Wailer, TDCJ-ID #722670, was in custody of the Texas Department of Criminal Justice, Institutional Division.
Waller was released to mandatory supervision on January 30, 2003.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On June 23, 1995, Waller pleaded guilty to burglary of a habitation and was sentenced to five years' confinement. (Resp't Answer at Ex. A.) Waller did not pursue either a direct appeal or a state application for habeas corpus relief. ( Id. at Ex. B; Federal Pet. at 3.) Waller filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on January 7, 2003. Waller argues that he is being illegally held past his discharge date. Cockrell has filed an answer arguing that Waller's petition should be dismissed for failure to exhaust state remedies.
Although Waller initially filed his federal petition in the United States District Court for the Northern District of Texas, Dallas Division, the petition was transferred to this division. 28 U.S.C. § 2241(d).
D. DISCUSSION
Issues raised in a federal habeas corpus petition must have been fairly presented to the state courts and thereby exhausted. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). An applicant's federal writ of habeas corpus shall not be granted unless the applicant exhausted his state court remedies. 28 U.S.C. § 2254(b). A claim must be presented to the highest court of the state to satisfy the exhaustion-of-state-court-remedies requirement. O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999); Richardson v. Procunier, 762 F.2d 429, 430 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). A Texas state prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review on direct appeal or a state habeas corpus application. Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432; see also Stones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995) (exhaustion of state remedies may be accomplished either directly or collaterally); Lowe v. Scott, 48 F.3d 873, 875 (5th Cir.) (noting that a petitioner who seeks to pursue an issue that he failed to raise on direct appeal must use available state collateral procedures to satisfy the exhaustion requirement), cert. denied, 515 U.S. 1123 (1995). A clam is fairly presented only if the petitioner relies upon identical facts and legal theories in both the state court proceeding and the action for federal habeas corpus relief. Picard v. Conner, 404 U.S. 270, 278 (1971).
Cockrell correctly asserts that Wailer's claim has not been properly exhausted in the state courts. It is clear that Wailer has not first pursued his state court remedies before seeking relief in this federal court. Accordingly, dismissal of this federal petition for lack of exhaustion is warranted so that Wailer can fully exhaust his state court remedies and then return to this court after exhaustion has been accomplished.
Even if Waller had exhausted his state remedies, there would be serious issues about whether his petition would be barred by the statute of limitations and whether his claim was rendered moot by his release from confinement. See 28 U.S.C. § 2244(d)(1); Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987).
II. RECOMMENDATION
It is therefore recommended that Wailer's petition be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar which may apply.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 May 23, 2003. 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); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 23, 2003 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, the 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, is returned to the docket of the United States District Judge.