Opinion
CIVIL ACTION NO. 4:02-CV-741-A
November 27, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to 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 Recommendations 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
Petitioner Ricky Mike Malone, prisoner #0327688, is presently confined in the Tarrant County Jail in Fort Worth, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
Although Malone is currently confined in the Tarrant County Jail, he is a convicted state felon, and the correct respondent in this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 is Janie Cockrell, Director, Texas Department of Justice, Institutional Division.
C. PROCEDURAL HISTORY
On August 18, 1995, Malone pleaded guilty to theft and burglary of a building. (1 State Habeas R. at 142, 147.) Under a plea-bargain agreement, the trial court sentenced Malone to seven years' confinement for each offense, to be served concurrently. (Id.) He did not appeal the convictions. On October 18, 1995, Malone filed a state habeas corpus application, challenging his convictions, which the Texas Court of Criminal Appeals denied without written order. Ex parte Malone, No. 30, 302-01 (Tex.Crim.App. Feb. 14, 1996) (not designated for publication).On September 15, 1997, Malone was released on mandatory supervision. (3 State Habeas R. at 5.) On September 29, 1997, Malone filed a second state habeas application, arguing that he was denied good-time credits, which the Court of Criminal Appeals denied without written order. Ex parte Malone, No. 30, 302-02 (Tex.Crim.App. Dec. 18, 1997) (not designated for publication). On May 18, 1998 and February 4, 1999, Malone was arrested on revocation warrants; however, Malone's mandatory supervision release was reinstated in both instances. ( Id. at 15-18.) Malone was again arrested on July 1, 1999 on a revocation warrant, and his mandatory supervision was revoked on December 21, 1999. ( Id. at 15, 19.)
Before the revocation, on December 7, 1999, Malone filed a third state habeas application, arguing that he was being incarcerated on a parole revocation warrant for more than 120 days without a hearing, which the Court of Criminal Appeals dismissed. Ex parte Malone, No. 30, 302-03 (Tex. Crim, App. Mar. 29, 2000) (not designated for publication). On June 8, 2000, Malone filed a federal petition for habeas corpus relief and claimed that he was wrongfully denied credit for time actually served in confinement. The United States District Court for the Northern District of Texas, Dallas Division, dismissed the petition with prejudice as moot after Malone received the disputed credit. Malone v. Johnson, No. 3:00-CV-1235-G (ND. Tex. Jan. 25, 2001).
On September 6, 2001, Malone filed a fourth state habeas application, challenging the conditions of his confinement and the denial of time credits, which the Court of Criminal Appeals dismissed for failing to exhaust the appropriate state administrative remedies. Ex parte Malone, No. 30, 302-04 (Tex.Crim.App. Nov. 7, 2001) (not designated for publication); see TEX. GOV'T CODE ANN. § 501.0081(b) (Vernon Supp. 2003). On December 5, 2001, Malone filed his fifth state habeas application and asserted that he was denied work credits and that he was confined in an inappropriate facility. The Court of Criminal Appeals denied the application without written order. Ex parte Malone, No. 30, 302-05 (Tex.Crim.App. Jan. 23, 2002) (not designated for publication). On December 17, 2001, Malone filed a federal habeas corpus petition in this court, which was dismissed without prejudice for failure to exhaust state remedies. Malone v. Cockrell, No. 4:02-CV-044-A (N.D. Tex. May 9, 2002).
On May 28, 2002, Malone filed a sixth state habeas corpus application and asserted that he was being forced to serve his sentence in installments because he was not receiving credit for time spent on mandatory supervision. The Court of Criminal Appeals dismissed the application for failing to exhaust the appropriate state administrative remedies. Ex parte Malone, No. 30, 302-06 (Tex.Crim.App. June 26, 2002) (not designated for publication); see TEX. GOV'T CODE ANN. § 501.0081(b). Malone filed the instant petition for writ of habeas corpus in this court on August 28, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing). He was again released to mandatory supervision on September 29, 2002. (Resp't Answer at 3)
Because Malone has notified this court that he is again incarcerated, this court can only assume that he has either violated the terms of his mandatory supervision or committed another offense.
D. ISSUE
Malone argues that his constitutional rights were violated when the time he spent on mandatory supervision was not credited to the length of his sentence.E. RULE 5 STATEMENT
Cockrell argues that Malone has failed to exhaust the appropriate state administrative remedies and that this court should dismiss the petition on that basis.
This court notes that Cockrell is correct and Malone's petition, if not impermissibly abusive, would be subject to dismissal for failure to exhaust state administrative remedies. 28 U.S.C. § 2254 (b)-(c); TEX. GOV'T CODE ANN. § 501.0081; Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir. 1978), cert. denied, 444 U.S. 848 (1979).
F. SUCCESSIVE PETITION
Cockrell argues that this Court lacks jurisdiction over Malone's petition due to his failure to request permission from the Fifth Circuit to file a successive petition for writ of habeas corpus raising new grounds. (Resp't Answer at 5.) Although Cockrell also argues that Malone has failed to exhaust his state remedies, this court must address the abuse-of-the-writ argument first. Wise v. Fulcomer, 958 F.2d 30, 35-36 (3d Cir. 1992).Malone's federal petition, which he filed in this court on December 17, 2001, does not render the instant petition impermissibly successive because it was dismissed without prejudice for failure to exhaust state remedies. Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). However, Malone's June 8, 2000 federal habeas petition is more problematic. In that petition, he argued that he was wrongfully denied credit for time actually served in confinement on previous revocation warrants and that he was denied access to the courts by the state administrative-remedy exhaustion requirement. (Resp't Answer at Ex. A.) The District Court dismissed the petition as moot. Malone v. Johnson, No. 3:00-CV-1235-G (N.D. Tex. Jan. 25, 2001). Because Malone's mandatory supervision was revoked on December 21, 1999, his claim that he was denied street-time credits upon revocation was available to him when he filed his first federal petition on June 8, 2000. Malone's current petition is, therefore, a second, impermissibly abusive federal habeas petition. See Felder v. McVicar, 113 F.3d 696, 697-98 (7th Cir. 1997) (holding voluntary dismissal of first petition as "admission of defeat" by petitioner dictates second petition be seen as abusive); Benton v. Washington, 106 F.3d 162, 164 (7th Cir. 1996) (stating although any petition returned for procedural deficiencies or dismissed on exhaustion grounds should be disregarded under an abuse analysis, any other outcome is presumptively sufficient to bring § 2244(b) into play); cf., e.g., Slack, 529 U.S. at 485-86 (holding dismissal of first petition for failure to exhaust does not render second petition abusive); Stewart v. Martinez-Villareal, 523 U.S. 637, 645 (1998) (holding dismissal of first petition as premature does not render second petition abusive); Camarano v. Irvin, 98 F.3d 44, 47 (2d Cir. 1996) (stating barring second petition after first petition dismissed without prejudice would strip "without prejudice" of all meaning). See generally Dunn v. Singletary, 168 F.3d 440, 441-42 (11th Cir. 1999) (stating an abuse analysis should focus on the substance of the prior proceeding to determine if merits adjudicated).
Under the habeas corpus statutes, a claim presented in a second or successive habeas corpus petition under § 2254 that was not presented in a prior petition shall be dismissed unless (1) it meets certain stringent requirements and (2) a panel of the appropriate court of appeals authorizes the filing of a second or successive petition after determining that the petition satisfies the section's requirements. 28 U.S.C. § 2244 (b)(2)-(3); see also Tyler v. Cain, 533 U.S. 656, 661-62 (2001). In other words, the court of appeals performs a screening function with new-claim successive petitions. Felker v. Turpin, 518 U.S. 651, 664 (1996). Malone has not obtained an order from the Fifth Circuit authorizing the district court to review this successive petition for habeas corpus relief. Malone is, therefore, required to request leave and obtain an order from the Fifth Circuit authorizing the district court to review these claims.
The petitioner must satisfy the appellate court that (1) the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable or (2) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2244 (b)(2)(A)-(B).
II. RECOMMENDATIONS
Malone's petition for writ of habeas corpus should be dismissed without prejudice to his right to file a motion for leave to file a successive petition in the United States Court of Appeals forthe Fifth Circuit. 28 U.S.C. § 2244 (b)(3)(A). Malone's requests for summary judgment and for an "interlocutory injunction" should be denied. (Pet'r Mem. at Attachs.)
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSION, 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 to the United States Magistrate Judge's proposed findings, conclusion, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations until December 18, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until December 18, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusion, 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, be and hereby is returned to the docket of the United States District Judge.