Opinion
No. 4:02-CV-870-Y
October 25, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the United States Magistrate Judge, as evidenced by his signature hereto, are as follows:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This petition is construed as a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Norman Wade Yoes, Prisoner I.D. No. 0249027, is a pretrial detainee presently confined in the Tarrant County Jail pending criminal charges in state court.
Respondent Dee Anderson, is the Sheriff of Tarrant County. No process has been issued in this case.
C. FACTUAL BACKGROUND
Yoes has apparently been charged in one or more indictments with various drug related offenses in state court and is currently awaiting trial in Criminal District Court No. 2 in Tarrant County, Texas. He raises various ineffective assistance claims in his federal petition for writ of habeas corpus filed in this court on October 16, 2002. (Pet. Exhibits.)
D. LEGAL ANALYSIS
Title 28 U.S.C. § 2243 authorizes a habeas corpus petition to be summarily dismissed. After review of the instant petition pursuant to 28 U.S.C. § 2243, it appears, from the face of the petition, that Yoes is not entitled to relief because he has not properly sought to exhaust his challenges in state court.
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C. § 2243 (emphasis added).
As a preliminary matter, the court notes that Yoes purports to bring this action under 28 U.S.C. § 2254. A pretrial petition challenging ongoing state criminal proceedings, however, 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); see also Lewis v. Bowles, No. 3:01-CV-0049-M, 2002 WL 307442, at *1 (N.D. Tex. Feb. 21, 2002) (§ 2241 rather than § 2254 is proper vehicle for habeas actions by pretrial detainees). Thus, this court construes Yoes's petition as seeking relief pursuant to § 2241, the proper procedural vehicle in this case.
A state pretrial detainee is entitled to raise his claims in a federal habeas proceeding under § 2241 if two requirements are satisfied. First, the petitioner must be in custody. See 28 U.S.C. § 2241 (c); Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir.), cert. denied, 484 U.S. 956 (1987). Second, the petitioner must have exhausted his available state remedies. Dickerson, 816 F.2d at 224. Because Yoes remains incarcerated in the Tarrant County Jail on the pending criminal charges, he is clearly "in custody" for purposes of § 2241. Thus, the issue is whether he has exhausted his state court remedies.
Despite the absence of an exhaustion requirement in the statutory language of § 2241, the courts have developed an exhaustion doctrine, holding that federal courts should abstain from the exercise of jurisdiction until the issues are resolved in state court, either by trial on the merits or by other state procedures available to the petitioner. See Dickerson, 816 F.2d at 225; see also Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 489-92 (1973); Brown v. Estelle, 530 F.2d 1280, 1284 (5th Cir. 1976); Clark v. Anderson, No. 4:01-CV-723-Y, 2001 WL 1631538, at *3 (N.D. Tex. Dec. 14, 2001). The exhaustion doctrine applicable to § 2241 was judicially crafted on federalism grounds to protect the state courts' opportunity to resolve initially any constitutional issues arising within their jurisdictions as well as to limit federal interference in the state adjudicatory process. See Dickerson, 816 F.3d at 225; Clark, 2001 WL 1631538, at *3 In Braden, the United States Supreme Court reiterated that absent "special circumstances," the "derailing of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court" is not allowed. Braden, 410 U.S. at 493.
In order to exhaust, a petitioner must fairly apprize the highest state court of the federal rights that were allegedly violated. See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). Additionally, the petitioner must present his claims in a procedurally proper manner to that court. Deters, 985 F.2d at 795. A petitioner may be excused from the exhaustion requirement only if he can show "exceptional circumstances of peculiar urgency." Id. at 795. Accordingly, absent "exceptional circumstances," in Texas, all claims must be presented to the Texas Court of Criminal Appeals by way of either a petition for discretionary review or postconviction writ of habeas corpus before a pretrial detainee may seek federal habeas corpus relief. See id.; Procunier, 762 F.2d at 432; Feist v. Scott, 885 F. Supp. 927, 930 (E.D. Tex. 1995); 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.), cert. denied, 515 U.S. 1123 (1995) (noting that petitioner who seeks to pursue issue that he failed to raise on direct appeal, must use available state collateral procedures to satisfy exhaustion requirement).
Either from conviction itself or from the disposition of a preconviction application for writ of habeas corpus. See generally TEX CODE CRIM. PROC. ANN. arts. 11.07-11.09 (Vernon 1977 Supp. 2002).
Applying this exhaustion doctrine to this case, it is clear from Yoes's petition that he has not satisfied the exhaustion requirement. The petition does not indicate any special circumstances which would warrant federal court interference in the normal process of charges being filed in state court and proceeding to trial. Thus, Yoes has not demonstrated that he should be excused from the exhaustion requirement. He has not shown an absence of available state corrective process or that exceptional circumstances exist that render such process ineffective. Accordingly, pretrial habeas interference by this court in the normal functioning of the state's criminal processes is not authorized. See Braden, 410 U.S. at 493.
The petition, and this court's records, reflect that Yoes has filed a prior civil rights action pursuant to 42 U.S.C. § 1983 in this court in Cause No. 4:02-CV-461, which was dismissed with prejudice on June 12, 2002. Yoes has appealed the June 12, 2002 judgment. Additionally, Yoes has apparently pursued some form of "interlocutory appeal" in the state intermediate court of appeals, as well as a grievance with the State Bar of Texas against at least one of his appointed counsel.
In summary, Yoes has failed to establish that he has exhausted his claims in state court proceedings, or, "exceptional circumstances" that would excuse the lack of exhaustion. As such, he is not entitled to seek federal habeas corpus relief at this time. This petition should be dismissed without prejudice to his right to seek federal habeas corpus relief after the state proceedings are concluded. Under the circumstances, it appears summary dismissal is appropriate.
RECOMMENDATION
It is therefore recommended that Yoes's petition for writ of habeas corpus be summarily dismissed without prejudice.
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 written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations until November 15, 2002. Failure to file written objections within the specified time shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to, proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that Petitioner is granted until November 15, 2002 to serve and file with the court, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendations. 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 is hereby, returned to the docket of the United States District Judge.