Opinion
Civil Action No. 4:03-CV-1270-A
February 9, 2004
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 under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Edwin DeWayne Williams, TDCJ-ID #609572, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Bridgeport, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
In 1991, pursuant to a plea bargain agreement, Williams pled guilty to burglary of a building in the 173rd District Court of Henderson County and was sentenced to fifteen years' confinement. (State Habeas R. at 20.) On October 16, 1997, Williams was released on mandatory supervision. (Parole Records at 17.) While on release, Williams was arrested for driving while intoxicated and possession of a controlled substance. (Id. at 3.) As a result, a pre-revocation warrant was issued forWilliams's arrest on December 13, 2001. (Id. at 1.) A revocation hearing was conducted on May 6, 2002, during which Williams admitted to both criminal allegations. (Id. at 3.) Based on Williams's admission in conjunction with witness testimony and documentary exhibits, the hearing officer recommended that Williams's mandatory supervision be revoked. (Id. at 5-9.) In accordance with this recommendation, the Texas Board of Pardons and Paroles (the Board) revoked Williams's mandatory supervision on May 13, 2002. (Id.)
Williams filed a state application for writ of habeas corpus raising one or more of the claims presented, which was dismissed by the Texas Court of Criminal Appeals pursuant to § 501.0081 of the Texas Government Code. Ex parte Williams, No. 26, 822-03, at cover (Tex.Crim.App. June 18, 2003) (not designated for publication). Williams filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 21, 2003. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (providing pro se habeas petition filed when petition is delivered to prison authorities for mailing). Dretke has filed an answer with documentary exhibits, to which Williams has not replied.
D. ISSUES
In four grounds, Williams complains that (1) the revocation hearing was held outside the state "statutory constraints," (2) he was denied his right to appeal the Board's decision to revoke his mandatory supervision, (3) TDCJ has illegally extended his fifteen-year sentence in violation of the original plea bargain agreement, and (4) he was denied his right to counsel during the revocation hearing. (Federal Pet. at 7-8.)
E. RULE 5 STATEMENT
Dretke maintains that Williams's petition is time barred under the federal statute of limitations, 28 U.S.C. § 2244(d), or, in the alternative, that Williams has failed to exhaust his state remedies regarding his claims as required by 28 U.S.C. § 2254(b)(1)(A). (Resp't Answer at 3-7.)
F. STATUTE OF LIMITATIONS
First, the question of whether Williams's petition is timely must be decided. Dretke contends the petition is time barred under the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), effective April 24, 1996. (Id. at 3-4.) The AEDPA imposes a one-year statute of limitations for filing a petition for federal habeas corpus relief. 28 U.S.C. § 2244(d). Specifically, § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(1)-(2).
In the context of this case, the statutory provision set forth in subsection (D) applies, viz, the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. See Heiser v. Johnson, 263 F.3d 162 (5th Cir. 2001) (Table, No. 00-14008). Williams could have discovered, through the exercise of due diligence, the factual predicate of his claims on May 13, 2002, the date his mandatory supervision was revoked. Accordingly, the statute of limitations began on May 13, 2002, and expired one year later on May 13, 2003, subject to any applicable tolling. Dretke acknowledges that the limitations period was statutorily tolled while Williams's state writ application was pending under § 2244(d)(2). He contends, however, that the statutory tolling provision "does not provide tolling for administrative dispute resolution proceedings," and, thus, the limitations period was not tolled while Williams pursued his time credit claim through the prison's time credit dispute resolution process as mandated by § 501.0081 of the Texas Government Code. TEX. GOV'T CODE ANN. 501.0081 (Vernon Supp. 2004).
Section 501.0081 of the Texas Government Code provides:
(a) The department shall develop a system that allows resolution of a complaint by an inmate who alleges that time credited on the inmate's sentence is in error and does not accurately reflect the amount of time-served credit to which the inmate is entitled.
(b) Except as provided by Subsection (c), an inmate may not in an application for a writ of habeas corpus under Article 11.07, Code of Criminal Procedure, raise as a claim a time-served credit error until:
(1) the inmate receives a written decision issued by the highest authority provided for in the resolution system; or
(2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date on which under the resolution system the inmate first alleges time-served credit error. (c) Subsection (b) does not apply to an inmate who, according to the department's computations, is within 180 days of the inmate's presumptive parole date, date of release on mandatory supervision, or date of discharge. An inmate described by this subsection may raise a claim of time-served credit error by filing a complaint under the system described by Subsection (a) or, if an application for a writ of habeas corpus is not otherwise barred, by raising the claim in that application.
This court has previously held otherwise. The pendency of a prison grievance procedure such as the one involved here tolls the running of the statute of limitations. See Broadnax v. Cockrell, No. 04:03-CV-524-A, 2003 WL 22244681, at *3 (N.D. Tex. Sept. 17, 2003); see also Kimbrell v. Cockrell, 311 F.3d 361 (5th Cir. 2002) (providing that "the timely pendency of prison grievance procedures would have tolled the one-year period" had Kimbrell timely pursued such administrative relief). The record reflects that following revocation of his mandatory supervision Williams requested administrative correction of his "maximum expiration date" through the prison's time credit dispute resolution process, as statutorily required, on November 25, 2002. (Resp't Answer Ex. A) See Tex. Gov't Code Ann. 501.0081. On June 10, 2003, TDCJ notified Williams in writing that there was no error in his time calculation. Thus, Williams's administrative proceeding was pending a total of 189 days, and he therefore is entitled to have that period tolled under the statute. Williams is also entitled to tolling during the pendency of his state writ application, or an additional 8 days. 28 U.S.C. § 2244(d)(2). Accordingly, his federal petition was due on or before November 26, 2003. His petition, filed on October 21, 2003, was therefore timely.
G. EXHAUSTION OF REMEDIES IN STATE COURT
Next, the question of exhaustion must be decided. Dretke asserts that Williams's claims have not been properly exhausted in the state courts because, by dismissing Williams's state writ application pursuant to § 501.0081, the Texas Court of Criminal Appeals has not addressed the merits of the claims. (Resp't Answer at 3-5.)
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1), (c); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). A Texas 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 or, or as in this instance, a state habeas corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998); Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). See also Ex Parte Bates, 978 S.W.2d 575, 576-77 (Tex. Grim. App. 1998). This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claim in a procedurally proper manner according to the rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
The terms of 28 U.S.C. § 2254(b) and (c) provide in pertinent part as follows:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts ofthe State, within the meaning of this section, ifhe has the right under the law of the State to raise, by any available procedure, the question presented.
Williams raised the bulk of his claims in his state writ application, however, the application was dismissed by the Texas Court of Criminal Appeals on § 501.0081 grounds. The dismissal by the Court of Criminal Appeals signifies that the state court did not consider the merits of Williams's claims. See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 469 U.S. 1098 (2003). Thus, the state court was deprived a fair opportunity to consider the merits of his claims, and the claims are unexhausted for purposes of federal habeas review. See Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002).
Apparently, the state court, when it dismissed William's state writ application on June 18, 2003, was unaware that TDCJ had issued a written decision on Williams's time calculation claim on June 10, 2003.
Typically, under these circumstances, a dismissal without prejudice is appropriate to allow the petitioner to exhaust his claims in state court as required by § 2254(b)(1). However, a dismissal without prejudice may jeopardize Williams's ability to seek a later review in federal court because the federal statute of limitations expired while his federal habeas petition was pending. The pendency of a federal proceeding does not provide a statutory basis for tolling the statute of limitations. Duncan v. Walker, 533 U.S. 167, 181 (2001). Thus, absent a stay or equitable tolling, Williams may be unable to return to federal court following exhaustion of his state court remedies. In such a case, the Fifth Circuit has held that a federal court has the discretion to either abate or dismiss the action. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998).
In the instant petition, Williams has asserted only unexhausted claims. If this court were to stay the petition, it would encourage state habeas petitioners to try to circumvent the federal statute of limitations by filing their federal habeas petitions when they know they have not exhausted their claims in state court. See Cowans v. Artuz, 14 F. Supp.2d 503, 507-08 (S.D.N.Y. 1998). Furthermore, the federal court would then have to hold the case in abeyance indefinitely with no control of or knowledge about the progress of collateral state court proceedings. Finally, in order to justify a stay, there must be exceptional or unusual circumstances, such as when state remedies are inadequate or fail to afford a full and fair adjudication of federal claims, or when exhaustion in state court would be futile. See Akins v. Kenney, 341 F.3d 681, 686 (8th Cir. 2003); Tolbert v, Cockrell, 4:01-CV-130-Y, 2001 WL 1516744, at * 6 (N.D. Tex. Nov. 7, 2001) (not designated for publication). Because there has been no final disposition of Williams's state application on the merits of his claims, any subsequent state application by Williams raising the grounds now raised should not be considered successive. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4; Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997). Consequently, Williams has an adequate remedy in state court and there has been no showing that it would futile for him to pursue his available state court remedy.
Accordingly, Williams must first pursue his state habeas corpus remedies before seeking relief under § 2254. Absent a showing that state remedies are inadequate, such showing not having been demonstrated by Williams, he cannot now proceed in federal court in habeas corpus. See 28 U.S.C. § 2254; Fuller v. Florida, 473 F.2d 1383, 1384 (5th Cir. 1973); Frazier v. Jones, 466 F.2d 505, 506 (5th Cir. 1972). Dismissal of this federal habeas corpus proceeding for lack of exhaustion is warranted so that Williams can fully exhaust his state court remedies and then return to this court, if he so desires, after exhaustion has been properly and fully accomplished. Williams is advised that his federal claims may be time barred, absent cause for equitable tolling, upon his return to federal court.
It is noted that the District Court may, in its discretion, deny relief on the instant federal petition notwithstanding the failure to exhaust. 28 U.S.C. § 2254(b)(2).
II. RECOMMENDATION
It is therefore recommended that Williams's petition for writ of habeas corpus be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar that 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 March 1, 2004. 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 op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until March 1, 2004, 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, a 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, be and hereby is returned to the docket of the United States District Judge.