Opinion
Civil Action No. 4:02-CV-0980-Y
March 26, 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:
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 Alfredo Hemandez Ibarra, TDCJ-ID #874974, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Mineral Wells, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division (TDCJ).
C. PROCEDURAL HISTORY
In 1998, Ibarra pled guilty in state court to felony driving while intoxicated and was sentenced to ten years' confinement. (Pet. at Ex. A.) On May 22, 2002, the Texas Board of Pardons and Paroles (the BPP) notified Ibarra that it had decided not to grant him mandatory supervision release. ( Id. at Ex. C.) By the instant federal petition, Ibarra alleges that BPP unconstitutionally rescinded earned time credits to be applied toward his eligibility for mandatory supervision release.
Ibarra filed a state application for writ of habeas corpus, which was denied without written order. See Ex parte Ibarra, No. 53,812-01 (Tex.Crim.App. Oct. 23, 2002) (not designated for publication). Ibarra filed his federal petition for writ of habeas corpus on November 25, 2002, in the United States District Court for the Northern District of Texas, Fort Worth Division.
A pro se habeas petition is filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
In one ground, Ibarra asserts that the BPP improperly rescinded his earned time credits "without [him] receiving any disciplinary action to cause this resending [sic]" just prior to his eligibility for release at the minimum expiration of his sentence. (Pet. at 7.)
E. RULE 5 STATEMENT
Cockrell believes that Ibarra has exhausted his state court remedies with respect to his claim and therefore does not move for dismissal on exhaustion grounds. (Resp't Answer at 3.) Nevertheless, because Ibarra's complaint regards time credits, he was required to exhaust state administrative remedies, as well as state court remedies, by complying with the TDCJ's dispute resolution procedures before filing a federal habeas petition. See TEX. Gov'T CODE ANN. § 501.0081 (Vernon Supp. 2003); Daniel v. Cockrell, No. 4:02-CV-852-Y, 2003 WL 292129, at *2 (N.D. Tex. Feb. 4, 2003). Ibarra stated in his state writ application that he did not present his claim to the time credit resolution system of TDCJ because "the issues cannot be resolved" through that system. (Pet. at 5.) However, the state trial court expressly found that Ibarra "failed to append or reference any compelling proof to show why his complaint cannot be resolved through the time credit resolution system." (State Habeas R. at 38.) Thus, Ibarra has failed to exhaust state remedies with regard to the claim presented. See 28 U.S.C. § 2254 (b).
Section 501.0081 of the Texas Government Code provides:
(a) The department shall develop a system that allows resolution of a complaint by an inmate who alleges that time credited on the inmate's sentence is in error and does not accurately reflect the amount of time-served credit to which the inmate is entitled.
(b) Except as provided by Subsection (c), an inmate may not in an application for a writ of habeas corpus under Article 11.07, Code of Criminal Procedure, raise as a claim a time-served credit error until:
(1) the inmate receives a written decision issued by the highest authority provided for in the resolution system; or
(2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date on which under the resolution system the inmate first alleges time-served credit error.
(c) Subsection (b) does not apply to an inmate who, according to the department's computations, is within 180 days of the inmate's presumptive parole date, date of release on mandatory supervision, or date of discharge. An inmate described by this subsection may raise a claim of time-served credit error by filing a complaint under the system described by Subsection (a) or, if an application for a writ of habeas corpus is not otherwise barred, by raising the claim in that application.
F. LEGAL ANALYSIS
Even assuming Ibarra had exhausted all available state remedies, his claim lacks merit. Exhibits provided by Cockrell indicate that none of Ibarra's earned time credits have been forfeited or "rescinded" by TDCJ. (Resp't Answer at Exs. B, C.) Furthermore, to the extent Ibarra may be indirectly complaining of the BPP's denial of mandatory supervision release, a habeas corpus applicant under 28 U.S.C. § 2254 must claim violation of a federal constitutional right to be entitled to relief. Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998). A state prisoner convicted after September 1, 1996 has no constitutionally protected right to early release to mandatory supervision. Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995). Effective September 1, 1996, Texas law provides for a discretionary mandatory supervision scheme. See TEX. Gov'T CODE ANN. § 508.149(b). The BPP determined that Ibarra should not be released to mandatory supervision because (1) Ibarra's accrued good conduct time is not an accurate reflection of his potential for rehabilitation, and (2) Ibarra's release would endanger the public. It was within the BPP's authority to make such a determination. Thus, Ibarra is not entitled to habeas relief.
Ordinarily, a federal habeas corpus petition that contains unexhausted claims is dismissed pursuant to Rose v. Lundy, 455 US. 509 (1982), allowing the petitioner to return to the state forum to present his unexhausted claim or claims. However, the total exhaustion rule of Rose v. Lundy, supra, and its progeny is no longer binding under the AEDPA. Title 28 U.S.C. § 2254 (b)(2) provides that an application for a writ of habeas corpus maybe denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. Under this provision, a federal court in its discretion may review on the merits and deny a habeas corpus application containing unexhausted claims. Because this authority is discretionary only, a federal court is not required to exercise this prerogative, and may still defer to the state courts where state consideration of an unexhausted claim would be appropriate. See Nobles, 127 F.3d at 420. In this case, for the reason discussed infra, it is apparent that Ibarra's claim is meritless, and even if exhausted in the state courts, would be rejected by this Court were it to be presented here after exhaustion had been accomplished. While in most circumstances it will continue to serve important interests for federal courts to adhere to the total exhaustion rule to promote comity, serve to avoid piecemeal litigation and eventually decrease the burden on federal courts, the case at bar is an instance where exercise of the prerogative enacted at § 2254(b)(2) is appropriate. See Lambert v. Blackwell, 134 F.3d 506, 513-15 (3rd Cir. 1998), cert. denied, 532 U.S. 919 (2001) (when deciding whether to deny a petition on the merits, denial is appropriate pursuant to § 2254(b)(2) when it is perfectly clear that the petition fails to present even a colorable claim regardless of its conformity with, or the state's invocation of, the exhaustion requirement).
RECOMMENDATION
Ibarra's petition for writ of habeas corpus should be DENIED.
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 16, 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 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 April 16, 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, 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.