Opinion
3:02-CV-837-L
October 17, 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 District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for habeas corpus relief brought by a state prisoner pursuant to 28 U.S.C. § 2254. Parties: Petitioner is presently confined at the Wynne Unit of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID) in Huntsville, Texas. Respondents are the Director of the TDCJ-ID and Dallas County Sheriff Jim Bowles. Process has been issued in this case. On May 23, 2002, prior to service of process, the Magistrate Judge issued a questionnaire to Petitioner, who filed his answers on June 19, 2002.
Although the petition does not specifically refer to § 2254 as the basis of the District Court's jurisdiction, the court clerk docketed the petition as one pursuant to § 2254. As more fully set out below, this court will construe the pro se petition as seeking relief pursuant to 28 U.S.C. § 2241 (c). See Fisher v. Rose, 757 F.2d 789, 792 n. 2 (6th Cir. 1985) (construing an improper § 2254 petition pursuant to § 2241 even though petitioner was represented by counsel).
The petition named Dallas County and its Criminal District Attorney as Respondents. In opening the case, the Clerk's Office replaced the named Respondents with the TDCJ-ID Director. By order dated August 14, 2002, the Magistrate Judge added Jim Bowles, Sheriff of Dallas County, as a Respondent.
Statement of Case: Petitioner is presently serving a ten-year sentence in TDCJ-ID for an aggravated robbery conviction imposed by the 401st Judicial District Court, Collin County, Texas, on October 2, 2000, in Cause No. 296-80403-00. (Answer to Question 1 of the magistrate judge's questionnaire). On March 8, 2001, the Dallas County Sheriff's Office placed a detainer with TDCJ-ID on the basis of a February 2000 indictment for theft, which is presently pending against Petitioner in Criminal District Court No. 1, Dallas County, Texas, Cause No. F00-70319-RH. (Answer to Questions 3 and 4 and copy of detainer attached to answers to the questionnaire).
In the instant petition for habeas corpus relief, Petitioner raises two claims: (1) violation of his speedy trial rights in connection with the Dallas County theft charge, which is the basis for the detainer filed with TDCJ-ID; and (2) retardation of his eligibility for parole on his ten-year sentence as a result of the detainer lodged with TDCJ-ID. (Petition at 7).
Insofar as Petitioner seeks to raise a claim under the Interstate Agreement on Detainers Act, his claim is patently frivolous. The Interstate Agreement on Detainers Act applies only when the detainer is based on an out-of-state charge. Here the detainer lodged with the TDCJ-ID is based on a Dallas County charge.
Prior to filing this federal habeas action, Petitioner filed five pro se motions/requests in Dallas County seeking a speedy trial or disposition of the theft charge. (Answer to Questions 5 and 6). These motions were filed during the period of June 2001 until January 2002, when Petitioner was no longer in the custody of Dallas County. (See Answer to Question 4, reflecting Petitioner was in the custody of Dallas County from February until July of 2000). As of the date of filing of the petition in this case, Petitioner had not received a response from the trial court on any of his motions/requests. ( Id.).
In response to this court's order to show cause, Respondent Cockrell filed a motion to dismiss TDCJ-ID as a party respondent, and Respondent Bowles filed an answer alleging Petitioner had failed to exhaust his state court remedies, and his claim under the Interstate Agreement on Detainers Act was inapplicable. Petitioner filed a reply disputing Bowles' claim that he has failed to exhaust his state court remedies, and seeking to amend the petition to dismiss TDCJ-ID as a party respondent.
Findings and Conclusions: The court considers first whether Petitioner may seek pre-trial habeas relief on his speedy trial claim. A petitioner may not seek pre-trial habeas relief under 28 U.S.C. § 2254. "[T]hat section applies only to post-trial situations and affords relief to a petitioner `in custody pursuant to the judgment of a state court.'"Dickerson v. State of Louisiana, 816 F.2d 220, 224 (5th Cir. 1987) (quoting 28 U.S.C. § 2254 (a) and (b)). Pre-trial petitions are cognizable under 28 U.S.C. § 2241, "which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him."Dickerson, 816 F.2d at 224; see also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). Therefore, Petitioner's request for speedy trial relief in Cause No. F00-70319-RH should be construed as a claim for pre-trial habeas relief pursuant to 28 U.S.C. § 2241 (c).
Section 2241(c) provides in relevant part that "[t]he writ of habeas corpus shall not extend to a prisoner unless . . . (3) [h]e is in custody in violation of the constitution or laws or treaties of the United States."
Pre-trial habeas relief is available only to enforce a state's obligation to bring a defendant promptly to trial, not to adjudicate the merits of a speedy trial claim under the Sixth Amendment and bar the state from proceeding to trial. Dickerson, 816 F.2d at 224. In order to be eligible for pre-trial habeas relief pursuant to 28 U.S.C. § 2241, a petitioner must be "in custody" and must have exhausted his available state remedies. Braden, 410 U.S. at 488-89; Dickerson, 816 F.2d at 224.
It is only in the post-trial setting that exhaustion is mandated by statute. Compare 28 U.S.C. § 2254 (b) with 28 U.S.C. § 2241(c)(3). Despite the absence of an exhaustion requirement in § 2241(c)(3), a body of case law has developed holding that federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner. See Dickerson, 816 F.2d at 225. See also Braden, 410 U.S. at 489-92; Brown v. Estelle, 530 F.2d 1280, 1284 (5th Cir. 1976). This exhaustion doctrine of § 2241(c)(3) was judicially crafted on federalism grounds to protect the state courts' opportunity to confront and resolve initially any constitutional issues arising within their jurisdiction and also to limit federal interference in the state adjudicatory process. See Dickerson, 816 F.3d at 225; Braden, 410 U.S. at 490-91.
Petitioner satisfies the "in custody" requirement. He is "in custody" for purposes of § 2241 by virtue of the detainer lodged with TDCJ-ID. See Braden, 410 U.S. at 488-89 (warden of Alabama prison in which petitioner was serving sentence, was agent of Kentucky in holding prisoner pursuant to Kentucky detainer; thus, petitioner was "in custody" for purposes of federal habeas corpus statute); Dickerson, 816 F.2d at 224-225 (federal government was agent of Louisiana when it held inmate pursuant to detainer, and thus, inmate in federal prison was "in custody" within meaning of habeas corpus statute for pretrial situation).
The record reveals, however, that Petitioner has not fully exhausted his available state remedies on his speedy trial claim. The proper procedure for seeking pre-trial relief on speedy trial grounds is to file a petition for writ of mandamus in the Texas Court of Criminal Appeals.See Chapman v. Evans, 744 S.W.2d 133, 135-138 (Tex.Crim.App. 1988) (conditionally granting mandamus petition seeking to compel district court to set for trial or dismiss pending indictment for offense unrelated to that for which petitioner was presently incarcerated);Thomas v. Stevenson, 561 S.W.2d 845, 846-47 (Tex.Crim.App. 1978) (conditionally granting mandamus petition seeking to compel district court to set case for trial).
The right to a speedy trial is guaranteed by the Sixth Amendment as applied to the states by the Fourteenth Amendment. Smith v. Hooey, 393 U.S. 374, 374-75 (1969) (reversing denial of mandamus relief and holding that State of Texas had a constitutional duty, upon request of federal prisoner that he be brought to trial on state charge, to make a diligent, good-faith effort to bring him before state court for trial).See also Klopfer v. North Carolina, 386 U.S. 213, 222-223 (1967).
Prior to the 1977 amendment of Article V, Section 5 of the Texas Constitution, the Supreme Court of Texas exclusively issued writs of mandamus to compel speedy trials. See Thomas, 561 S.W.2d 845, 846 (Tex.Crim.App. 1978) (cited cases omitted). Effective January 1, 1978, the Texas Court of Criminal Appeals acquired the additional jurisdiction to issue writs of mandamus m cases "regarding criminal matters" Id.; see also Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex.Crim.App. 1994); Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 584-585 (Tex.Crim.App. 1993); Smith v. Flack, 728 S.W.2d 784, 788-789 (Tex.Crim.App. 1987).
While Petitioner filed at least one speedy trial motion and several requests to dispose or dismiss the theft charge, he has not pursued a petition for writ of mandamus in the Court of Criminal Appeals. See Brown v. Estelle, 530 F.2d 1280, 1284 (5th Cir. 1976) (requiring exhaustion by petition for writ of mandamus, but applying law in effect prior to 1977 amendment to Article V, Section 5 of the Texas Constitution).
Texas has adequate and effective state procedures for obtaining a speedy trial and in the absence of proof that the highest state court with criminal law jurisdiction has been given a fair opportunity to consider petitioner's speedy trial claim, the due administration of justice would be better served by insisting on exhaustion of his state court remedies. As such Petitioner's speedy trial claim should be dismissed for failure to exhaust state remedies.
The Court addresses next Petitioner's claim that the detainer is retarding his eligibility for parole on the ten-year sentence he is presently serving within TDCJ-ID, and that the detainer has adverse consequences on educational opportunities and elevation to trusty status. (See Answer to Question 7). While the above allegation may arguably raise a constitutional claim, it is premature in light of Petitioner's failure to properly exhaust his state court remedies on his pretrial claim. Therefore, this claim should be dismissed without prejudice as premature. RECOMMENDATION
In light of the dismissal of this claim, the court need not address Petitioner's request to dismiss Respondent Cockrell andlor TDCJ-ID as a party respondent.
For the foregoing reasons, the magistrate judge recommends that the District Court dismiss without prejudice for failure to exhaust state court remedies Petitioner's claim for speedy-trial relief.
It is further recommended that the District Court dismiss without prejudice as premature Petitioner's claims that the detainer is retarding his eligibility for parole on his ten-year sentence, and that the detainer has adverse consequences on his educational opportunities and elevation to trusty status.
A copy of this recommendation will be mailed to Petitioner and counsel for Respondents.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.