Opinion
Civil Action No. 4:04-CV-0910-A.
July 25, 2005
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 pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Eligah Darnell, Jr., CID # 0274245 and TDCJ #509489, is in custody of the Tarrant County Sheriff's Office, Tarrant County Justice Center, Fort Worth, Texas.
Respondent Dee Anderson is the Sheriff of Tarrant County, Texas.
C. FACTUAL AND PROCEDURAL HISTORY
Darnell has been charged by indictment in state court with failure to register as a sex offender and is currently awaiting trial in Tarrant County, Texas. (Pet'r Reply to Resp't Supp. Reply, Exhibit C at 25.) In this federal petition, filed on December 8, 2004, Darnell raises four grounds for habeas relief. (Petition at 7-8.) On April 7, 2005, the undersigned United States Magistrate Judge entered his Findings, Conclusions, and Recommendation, wherein he recommended that the petition be dismissed on exhaustion grounds. 28 U.S.C. § 2254(b). The United States District Judge, on July 20, 2005, rejected the Findings, Conclusions, and Recommendation, concluded that any further attempt by Darnell to exhaust his state remedies would be futile, and referred the cause back to the Magistrate Judge for further findings, conclusions and recommendation.
Darnell has filed numerous habeas and civil rights actions in this court.
D. DISCUSSION
1. Revocation and Loss of Time Credits
Darnell's first and second grounds involve revocation of his mandatory supervision and the resultant forfeiture of time spent on release — i.e., street time, relevant to his 1989 conviction and sentence for indecency with a child. Darnell asserts that in February 2004, while on mandatory supervision release, he was arrested for failing to register as a sex offender. (Pet'r Memorandum in Support at 1.) As a result of the new charge, revocation proceedings were initiated, and his mandatory supervision was revoked. ( Id.) He challenges the revocation and loss of street time credit.
The record reveals that Darnell discharged his sentence for his 1989 conviction on August 12, 2004, and is no longer in custody pursuant to the conviction. For a federal court to have subject matter jurisdiction over a habeas proceeding under § 2254, the petitioner must be "in custody pursuant to the judgment of a State court." See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989). The "in custody" determination is made at the time the § 2254 petition is filed. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Once the jurisdictional prerequisite of custody is met at the time of filing, jurisdiction is not defeated by the petitioner's subsequent release from custody under the state court judgment while the petition is pending. Id.
Darnell was not in custody under the 1989 conviction and concomitant nine-year sentence at the time he filed this petition on December 8, 2004, because his sentence was fully discharged on August 12, 2004. (Motion to Dismiss Dretke as Party-Respondent at 1 n. 2.) Nor does the registration requirement place him in custody for purposes of § 2254. See Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir. 2002) (Ohio sexual-predator statute); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (Oregon sex-offender statute); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir.), cert denied, 528 U.S. 963 (1999) (California statute); Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 1998), cert. denied, 525 U.S. 1081 (1999) (Washington statute). Consequently, Darnell does not meet the statutory requirements to seek review under § 2254 as to grounds one and two. This court is therefore without jurisdiction to consider those grounds.
2. Futility and Delay in State Process
In his third and fourth grounds, Darnell asserts that state processes are ineffective to protect his rights and that resorting to further state processes in an effort to exhaust his claims is futile and would result in further delays. These claims have been considered by the United States District Judge who has ruled in Darnell's favor on the issue. Thus, the claims are moot.
3. Sex Offender Registration
To the extent Darnell attempts to challenge the indictment or his current incarceration on the pending charge of failure to register as a sex offender, a pretrial petition challenging ongoing state criminal proceedings is properly brought under 28 U.S.C. § 2241. See Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (construing petition filed to seek release from pending state criminal proceeding as brought under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254); Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987) (same). Darnell's attempt to recharacterize his § 2254 petition as such is unavailing. (Pet'r Written Objection to Magistrate's Findings at 1; Pet'r Reply Brief at 1-2.)
II. RECOMMENDATION
It is therefore recommended that Darnell's grounds one and two be dismissed for lack of subject matter jurisdiction and that his grounds three and four be dismissed as moot. Darnell's motion for leave to file a reply brief should be granted. All other pending motions not previously ruled on should be denied.
Darnell filed a "Motion to Amend" his original reply brief sent in February 2005, which was apparently refused by the clerk's office for insufficient postage. His motion to amend was therefore docketed as a motion for leave to file petitioner's reply brief.
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 August 15, 2005. 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 August 15, 2005, 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.