Opinion
CIVIL ACTION NO. 4:03-CV-076-Y
April 9, 2003
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 Craig P. Gill, TDCJ-ID #898141, is currently confined at the Jester IV Unit of the Texas Department of Criminal Justice, Institutional Division in Richmond, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On December 10, 2001, Gill was convicted of burglary of a habitation and sentenced to 20 years' confinement. (State Habeas R. at 14.) On January 8, 2002, Gill filed a notice of appeal. ( Id. at 16.) On September 4, 2002, Gill filed a Step I Grievance with TDCJ, arguing that he was entitled to receive a free copy of the arrest warrant, which was denied on September 13, 2002. (Pet'r Traverse at Attach. p. 2.) On October 1, 2002, Gill filed a state habeas corpus application, arguing that he was being denied time credits for the time he spent confined in another jurisdiction, for the time he spent on a detainer, and for the time he was erroneously released on bail. ( Id. at 6-7.) The Second District Court of Appeals affirmed the trial court's judgment on November 14, 2002. Gill v. State, No. 2-02-006-CR (Tex.App.-Fort Worth Nov. 14, 2002, no pet.) (not designated for publication). On December 18, 2002, the Texas Court of Criminal Appeals dismissed Gill's state habeas corpus application with the notation "direct appeal pending." Ex parte Gill, No. 54, 298-01 (Tex.Crim.App. Dec. 18, 2002) (not designated for publication). The Second District Court of Appeals issued its mandate on January 23, 2003. (Resp't Answer at Ex. A p. 3.) Gill filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on January 27, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, prose habeas petition filed when papers delivered to prison authorities for mailing).
D. RULE 5 STATEMENT
Cockrell asserts that Gill has failed to exhaust his state court remedies as to the claims presented in this federal petition and, therefore, moves for dismissal.
E. ISSUES
Gill raises the following grounds for relief:
1. He is entitled to confinement credit for the time he served in Louisiana after he was arrested.
2. He is entitled to confinement credit for the time he served in Tarrant County on a prior conviction from the time Hood County placed a detainer on him until his transfer to Hood County to stand trial for his current conviction.
3. He is entitled to time credit from the date the detainer was filed by Hood County until his subsequent arrest in Louisiana.
4. He is entitled to time credit for the time he was erroneously released on bail by Hood County until his subsequent arrest in Louisiana.
F. EXHAUSTION
Issues raised in a federal habeas corpus petition must have been fairly presented to the state courts and thereby exhausted. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). An applicant's federal writ of habeas corpus shall not be granted unless the applicant exhausted his state court remedies. 28 U.S.C. § 2254(b). A claim must be presented to the highest court of the state to satisfy the exhaustion-of-state-court-remedies requirement. O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999); Richardson v. Procunier, 762 F.2d 429, 430 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983). A Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in either a petition for discretionary review on direct appeal or a state habeas corpus application. Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Richardson, 762 F.2d at 432; see also Stones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995) (exhaustion of state remedies may be accomplished either directly or collaterally); Lowe v. Scott, 48 F.3d 873, 875 (5th Cir.) (noting that a petitioner who seeks to pursue an issue that he failed to raise on direct appeal must use available state collateral procedures to satisfy the exhaustion requirement), cert. denied, 515 U.S. 1123 (1995). A clam is fairly presented only if the petitioner relies upon identical facts and legal theories in both the state court proceeding and the action for federal habeas corpus relief. Picard v. Conner, 404 U.S. 270, 278 (1971).
Cockrell correctly asserts that the claims of this federal petition have not been properly exhausted in the state courts. The claims Gill raises in the instant petition are the same claims he raised in his state habeas application. However, the Court of Criminal Appeals dismissed the application because his direct appeal was pending, i.e., neither an appellate court opinion nor a mandate had been issued, when he filed the application. See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex.Crim.App. 2000) (holding Court of Criminal Appeals has no jurisdiction over habeas application if it is filed before mandate issues in applicant's direct appeal). Under Texas law, a dismissal means the Court of Criminal Appeals declined to consider the claim for reasons unrelated to the claim's merits. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). The facts regarding Gill's claims have not been developed.
Additionally, Gill has failed to properly exhaust state administrative remedies. 28 U.S.C. § 2254(b)-(c); Ex parte Stokes, 15 S.W.3d 532, 533 (Tex.Crim.App. 2000). Before filing a state or federal habeas petition raising a claim regarding time-served credit relief, Gill must first exhaust administrative remedies by complying with TDCJ's dispute resolution procedures. TEX. GOV'T CODE ANN. § 501.0081 (Vernon Supp. 2003); see Lerma v. Estelle, 585 F.2d 12997, 1299 (5th Cir. 1978), cert. denied, 444 U.S. 848 (1979). Although Gill filed a Step I Grievance, it did not raise the time-served claims that Gill now asserts. Further, Cockrell has provided an affidavit that shows Gill has not filed any grievance proceeding regarding a time-credit issue. (Resp't Answer at Ex. B.) Thus, Gill's claims have not been properly exhausted.
Although the terms of § 2254(b)(2) provide that a petition for a writ of habeas corpus may be denied on the merits notwithstanding the petitioner's failure to exhaust his state remedies, complete exhaustion assists the federal courts in their review because federal claims that have been fully exhausted in state courts will necessarily be accompanied by a more complete factual record. Rose v. Lundy, 455 U.S. 509, 518-19 (1982). Exhaustion of state remedies is not required in a federal habeas case if, as Gill asserts, the state corrective process is unavailable or circumstances exist that render such process ineffective to protect the rights of the petitioner. 28 U.S.C. § 2254(b)-(c). (Pet'r Traverse at 2, 5.) Gill may still pursue an administrative grievance with TDCJ's Classification and Records Division and an application for writ of habeas corpus in the Court of Criminal Appeals before returning to this court once his state remedies have been exhausted. See Slack v. McDaniel, 529 U.S. 473, 486 (2000) (holding subsequent federal habeas petition not impermissibly successive when previous federal petition dismissed for failure to exhaust state remedies); Torres, 943 S.W.2d at 474 (holding if first state habeas application is dismissed for reasons unrelated to the merits of the application, second application is not barred as an abuse of the writ).
Accordingly, dismissal of this federal petition for lack of exhaustion is warranted so that Gill can fully exhaust his state remedies and then return to this court after exhaustion has been accomplished. See generally Daniel v. Cockrell, No. 4:02-CV-852-Y, 2003 WL 292129, at *2 (N.D. Tex. Feb. 4, 2003) (stating both administrative grievance procedures and state court remedies must be exhausted before federal relief on time-served dispute is sought).
This court reminds Gill that the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. 28 U.S.C. § 2244(d). Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after either the petitioner's conviction becomes final or the factual predicate of the claims could have been discovered through the exercise of due diligence, whichever is later. Id. § 2244(d)(1). In this case, it appears that the limitations period began to run on December 14, 2002—30 days after the court of appeals affirmed the trial court's judgment. TEX. R. App. P. 68.2(a). The statute of limitations is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2). But see Foley v. Cockrell, 222 F. Supp.2d 826, 828 (N.D. Tex. 2002) (holding limitations not tolled during time administrative grievance is pursued). Thus, Gill is hereby cautioned to return to this court with all due speed as soon as all state remedies have been exhausted.
II. RECOMMENDATION
It is recommended that Gill's petition for writ of habeas corpus be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar that may apply.
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 April 30, 2003. 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); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 30, 2003 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, 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, is returned to the docket of the United States District Judge.