Opinion
2:02-CV-0180
November 15, 2002
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
Came this day for consideration the "Petition for Writ of Habeas Corpus" filed by petitioner VERNON MARLO WATKINS on June 26, 2002. By his habeas application, petitioner seeks to "overturn and expunge the Judgment of Cause No. B-2649-9110-CR. It appears that on or about January 20, 1992, petitioner was convicted in said cause number of the offense of possession of a controlled substance, to wit: "diphenoxylate of less than twenty-eight grams," out of the 242nd Judicial District Court of Swisher County, Texas, and was assessed a 10-year term of imprisonment, probated.
Based on the judgment date provided by petitioner, it appears petitioner discharged, well prior to the filing of the instant motion, the sentence assessed pursuant to the challenged conviction. Petitioner advises he received a 10-year sentence on or about January 20, 1992. Documentation provided by petitioner indicates he was arrested on October 15, 1991. Even if the Court calculates petitioner's sentence from the date of the judgment without awarding credit for any prejudgment time served, petitioner would have completely discharged his sentence on or about January 20, 2002. Petitioner, therefore, does not meet and did not at the time he submitted his petition for filing, the custody requirement necessary for federal habeas relief. Federal law requires petitioner be "in custody" to pursue federal habeas relief See 28 U.S.C. § 2241(c)(1), (2), and (3) (subsections 4 and 5 are not applicable to this case). Federal habeas corpus is not the appropriate vehicle, at this late stage, through which petitioner may seek review of the validity of his conviction. As this Court cannot grant petitioner the relief he seeks in his habeas application, said petition is moot under the continuing case and controversy requirement and subject to immediate dismissal.
Further, even if petitioner had not fully discharged his sentence, it appears petitions habeas application would be subject to dismissal as time barred for failure to file the petition within the time permitted by 28 U.S.C. § 2244(d). Petitioner was convicted on or about January 20, 1992 but did not file the habeas application until June 26, 2002, over ten (10) years later.
It is the opinion of the undersigned that petitioner's habeas application should be dismissed for the above-stated reasons.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for Writ of Habeas Corpus filed by petitioner VERNON MARLO WATKINS be, in all things, DISMISSSED.
INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Any party may object to the proposed findings, conclusions, or recommendation within fourteen (14) days after the filing thereof. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 5(b). Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).