Opinion
No. 3:02-CV-2591-H.
July 2, 2003.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
Factual Background:
This is a habeas corpus proceeding brought under 28 U.S.C. § 2254. Petitioner is in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent Janie Cockrell is the Director of TDCJ-ID.
On October 12, 2000, Petitioner pled guilty to driving while intoxicated in the 54th District Court of McLennan County, Texas. Petitioner was sentenced to five years imprisonment. In this petition, Petitioner challenges the calculation of his time credits. Petitioner argues: (1) he was denied Mandatory Supervision release; (2) his good time and work time credits were denied; and (3) his mandatory release was taken without a reason.
On February 6, 2003, Respondent filed an answer and motion for summary judgment on the grounds Petitioner has failed to exhaust his state court remedies. Respondent's motion is before the Court for consideration.
Discussion:
A petitioner must fully exhaust his state court remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must present his claims in a procedurally correct manner. See Castille v. Peoples, 489 U.S. 346, 351 (1989). 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); See Bautista v. McCotter, 793 F.2d 109,110 (5th Cir. 1986).
Texas inmates must generally pursue sentence credit issues through a dispute-resolution process within the prison system before seeking relief through the state habeas corpus 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).
Petitioner has not filed a state petition for writ of habeas corpus regarding his claims. Although Petitioner appears to have complied with section 501.0081 of the Texas Government Code, his failure to file a state habeas corpus application has deprived the highest state court of the opportunity to review his claims. See 28 U.S.C. § 2254(b); see also Shepard, 65 S.W.3d at 674-75. Accordingly, a ruling from the federal court at this juncture would preempt the state court from performing its proper function. See Rose v. Lundy, 455 U.S. 509, 518 (1982) (holding that 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 has also raised his work conditions claim in a civil rights suit filed pursuant to 42 U.S.C. § 1983. (Petitioner's Reply p. 3).
Petitioner has not satisfied the exhaustion requirement because he has not raised any of his claims in a state application for writ of habeas corpus. Respondent's motion for summary judgment should be granted and the petition dismissed without prejudice.
RECOMMENDATION
The Court recommends that the District Court dismiss the petition for writ of habeas corpus without prejudice for failure to exhaust state court remedies.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on Petitioner. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).