Opinion
No. 3:01-CV-2619-M
December 13, 2002
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 subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is currently incarcerated in the Texas Department of Criminal Justice Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: Petitioner received a four-year probated sentence for possession of cocaine in Cause No. F97-55678-K on February 5, 1998. (See Motion to Proceed with Adjudication of Guilt, attached to Pet. Writ of Habeas Corpus (Pet.)). On April 15, 1999, petitioner was indicted for aggravated robbery in Cause No. F-99-36692, and for unauthorized use of a motor vehicle in Cause No. F-99-36721. (See Pet. at 1-2; Brief attached to Pet. (Brf.) at 5, 7; Indictment and Preliminary Initial Appearance Forms, attached to Pet.) Based on the indictments, in part, the state filed a motion on or about May 4, 1999, to adjudicate guilt for violation of probation. (See Motion to Proceed with Adjudication of Guilt, attached to Pet.). All three matters were apparently set for trial simultaneously. (Brf. at 4; Pass Slips dated 5/27/99 and 8/30/99, attached to Pet.) On October 12, 1999, petitioner pled guilty to the unauthorized use of a motor vehicle case. (See Judgment, attached to Pet.) Pursuant to the plea bargain for that case, the State agreed that the sentences for all cases would run concurrently. (See Plea Bargain, attached to Pet.) State records reflect that petitioner was sentenced to twenty-one years for the aggravated robbery and to ten years for the possession of cocaine case in which his probation was revoked. (See Letter from Schlosser to Garner of 10/19/01, attached to Pet.)
Petitioner did not appeal any of his convictions. (Pet. ¶ 8.) On July 6, 2001, petitioner filed a motion for leave to file a writ of mandamus with the intermediate state appellate court wherein he sought an order of release based on his alleged completion of his two-year sentence; the application was returned to him unfiled, however. (Id. ¶ 11; Brf. at 2; Letter from Matz to Garner of 7/12/01, attached to Pet.) Petitioner then filed a motion for leave to file his writ with the Texas Court of Criminal Appeals. (Brf. at 2; Motion for Leave, attached to Pet.) On September 12, 2001, that court denied the motion for leave "WITHOUT WRITTEN ORDER." See Court of Criminal Appeals of Texas Hand Down Opinions for Sep. 12, 2001, http://www.cca.courts.state.tx.us/opinions/09122001hd.htm (accessed Dec. 10, 2002) (Official internet site of the Texas Court of Criminal Appeals). Petitioner also sought correction of his time credit calculations through the prison administrative process on July 5, 2001, but was informed that "[t] here is no error in your present time credit calculations." (See Tex. Dep't Crim. Justice Custodian of Offender Records Time Credit Dispute Resolution Final Certification Decision dated Oct. 17, 2001, attached to Pet.)
In December 2001, petitioner signed the instant petition and placed it in the prison mailing system. (Pet. at 9.) Petitioner claims that he was sentenced to merely two years in prison for all three cases pursuant to the plea bargain, that he has served his sentence, and that he is therefore entitled to release. (See Pet. at 7, ¶ C; Brf. at 2-4, 8.) Petitioner further claims that the state records showing concurrent sentences of twenty-one years and ten years for the aggravated robbery and probation revocation are in error. (See Brf. at 2-3, 8) He alleges ineffective assistance of counsel at all stages of the proceedings, and that he was denied due process because he did not have an attorney present for the aggravated robbery and probation revocation matters. (Pet. at 7, ¶ A, Brf. at 4-6.)
II. JURISDICTION
Federal district courts have jurisdiction to entertain petitions for writs of habeas corpus only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. One satisfies the "in custody" requirement when the challenged conviction has not fully expired at the time that the petitioner files his petition under § 2254. See Carafas v. Lavallee, 391 U.S. 234, 238 (1968). One is not "in custody" for a particular conviction when he or she "suffers no present restraint" from the challenged conviction. Maleng v. Cook, 490 U.S. 488, 492 (1989). "[O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual `in custody' for the purposes of a habeas attack upon it." Id.
In this instance, respondent appears to have lawful custody of petitioner pursuant to two judgments and sentences — one for possession of cocaine and one for aggravated robbery. However, it appears that respondent no longer has custody of petitioner for his 1999 conviction for the unauthorized use of a motor vehicle. The sentence for that conviction fully expired in April 2001. Having fully served his sentence, petitioner is no longer "in custody" such that he can challenge the conviction for unauthorized use of a motor vehicle under 28 U.S.C. § 2254.
Petitioner concedes that his two-year 1999 conviction has fully expired — in fact such expiration forms the basis for his third ground for relief. (Pet. at 7.) Nevertheless, he challenges that conviction notwithstanding his incarceration for aggravated robbery and possession of cocaine. (Pet. at 2, ¶ 4.)
Because petitioner is still incarcerated for the aggravated robbery and possession of cocaine convictions, the Court has jurisdiction to entertain petitioner's challenges to those convictions. However, as discussed below, petitioner failed to exhaust his state remedies with respect to those claims.
III. EXHAUSTION
A petitioner must fully exhaust state remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b). To exhaust in accordance with § 2254, a petitioner must fairly present the factual and legal basis of any claim to the highest available state court for review prior to raising it in federal court. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). In Texas, a prisoner must present his claim to the Texas Court of Criminal Appeals in a petition for discretionary review or an application for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432. Further, to exhaust one's state remedies, one must present his claims in a procedurally proper manner. See Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982).
As of January 1, 2000, Texas inmates must generally pursue sentence credit issues through a dispute-resolution process within the prison system before seeking relief through the state habeas process. See TEX. Gov'T CODE § 501.0081 (Vernon Supp. 1999). After completion of the dispute — resolution process or upon being exempted from such completion, the inmate must also pursue relief through the state habeas process to fully exhaust his state remedies. Id.; Ex parte Shepherd, 65 S.W.3d 673, 674-75 (Tex.Crim.App. 2002) (Cochran, J., concurring).
In this case, petitioner filed a request under TEx. GOV'T CODE § 501.0081 relating to the calculation of his sentence credits and received a decision on that request. However, the exhaustion of his administrative remedies in accordance with TEX. GOV'T CODE § 501.0081 does not dispense with the requirement that petitioner properly exhaust his state remedies by presenting his claims to the Texas Court of Criminal Appeals. Although petitioner filed an application of leave to file writ of mandamus with the Texas Court of Criminal Appeals after the intermediate appellate court denied a similar application, the application does not suffice. A writ of mandamus is a mechanism to compel action, not review judgments, under Texas law. See In re McAfee, 53 S.W.3d 715, 716-17 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (noting what can be accomplished through a writ of mandamus under Texas law). The Texas Court of Criminal Appeals, furthermore, denied petitioner leave to file his writ of mandamus. See Court of Criminal Appeals of Texas Hand Down Opinions for Sep. 12, 2001, http://www.cca.courts.state.tx.us/opinions/09122001hd.htm (accessed Dec. 10, 2002) (Official internet site of the Texas Court of Criminal Appeals). Having filed no petition for discretionary review or state writ of habeas corpus, petitioner has failed to properly present his claims to the Texas Court of Criminal Appeals.
Petitioner contends that by waiving his right to appeal, he also waived his right to file a state petition for writ of habeas corpus. He provides no support for the contention, however. Moreover, his waiver of appellate rights does not contain a waiver of his right to file a state petition for writ of habeas corpus. (See Waiver of Right to Appeal, attached to Pet.) Consequently, state remedies appear available to petitioner.
A federal district court may raise the lack of exhaustion sua sponte. Shute v. State, 117 F.3d 233, 237 (5th Cir. 1997). It is well-settled that federal courts can dismiss without prejudice a federal petition for writ of habeas corpus that contains unexhausted grounds for relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982). As a matter of comity, the state courts must be given a fair opportunity to hear and consider the claims raised by an applicant before those claims are heard in federal court. Picard v. Connor, 404 U.S. 270, 275 (1971). A federal habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990); Bautista, 793 F.2d at 110.
Because petitioner has presented no claims to the Texas Court of Criminal Appeals in a procedurally proper manner, that court has had no opportunity to review the claims raised herein. A ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose, 455 U.S. at 518 (the exhaustion requirement is "designed to protect the state courts role in the enforcement of federal law and prevent the disruption of state judicial proceedings"). Petitioner is, therefore, not entitled to habeas corpus relief for failure to exhaust his state remedies.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DISMISS the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 for lack of subject matter jurisdiction to the extent it challenges petitioner's conviction for the unauthorized use of a motor vehicle (Cause No. F-99-36721). It is further RECOMMENDED that the Court DISMISS without prejudice the instant habeas corpus petition for failure to exhaust state court remedies to the extent petitioner challenges his convictions for possession of cocaine (Cause No. F-97-55678) and aggravated robbery (Cause No. F-99-36692).