Westerman v. Bell et al

Filing 3

REPORT AND RECOMMENDATION: it is recommended that Petitioner's 1 Application for Writ of Habeas Corpus be DISMISSED WITHOUT PREJUDICE for failure to exhaust available state court remedies. Signed by Judge Andrew W. Austin. (kkc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RICHARD CLAUDE WESTERMAN,
Petitioner,

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V.
OLIVER J. BELL,1
Respondent.

CIVIL NO. A-12-CA-435-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Petitioner’s Application for Writ of Habeas Corpus under 28 U.S.C.
§ 2254. Petitioner, proceeding pro se, has paid the full filing fee for his application. For the reasons
set forth below, the undersigned finds that Petitioner’s application for writ of habeas corpus should
be dismissed without prejudice for failure to exhaust state court remedies.
DISCUSSION
Petitioner filed a civil rights complaint in Cause No. A-12-CV-396-LY, seeking his
immediate release from parole or mandatory supervision. Because the exclusive remedy for a person
who challenges the fact or duration of his confinement and seeks immediate or speedier release is

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Petitioner misspells Respondent Bell’s first name as “Olive.” The Court will use the correct
spelling of Respondent Bell’s name.

habeas corpus relief, the Court ordered Petitioner to show cause why his action should not be
considered as an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court
directed the Clerk to forward forms to Petitioner for filing an application pursuant to 28 U.S.C.
§ 2254 and instructed Petitioner to complete the forms and return them to the Court if he wished to
proceed in an application for habeas corpus relief. Petitioner returned the habeas corpus application
to the Court on May 14, 2012, but indicated he wished to proceed in both a civil rights complaint
and in an application for habeas corpus relief. This cause was opened to address the application for
habeas corpus relief.
According to Petitioner, in October 1982, he was sentenced in Travis County and Comal
County to 25 years in prison. Petitioner indicates the sentences were ordered to run concurrently.
Petitioner contends he has discharged his sentences and should no longer be on parole or mandatory
supervision. Specifically, he complains he has not been given credit for the time he spent in county
jails or Intermediate Sanctions Facilities as a result of parole violations. Petitioner requests to be
released from parole. He also requests monetary damages for the excess time he has served on his
sentence.2
ANALYSIS
A fundamental prerequisite to federal habeas corpus relief under Title 28 U.S.C. §2254 is the
exhaustion of all claims in state court prior to requesting federal collateral relief. Sterling v. Scott,
57 F.3d 451, 453 (5th Cir. 1995), cert. denied, 116 S. Ct. 715 (1996). Section 2254(b) provides that:

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Petitioner’s request for monetary damages is not a proper request for relief in an application
for habeas corpus relief. Accordingly, the Court considered Petitioner’s request for monetary
damages in his civil rights case in Cause No. A-12-CV-396-LY.
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(1)

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
unless it appears that:
(A)

the applicant has exhausted the remedies available in the
courts of the State; or

(B)

(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.

28 U.S.C. § 2254. This requirement is designed in the interests of comity and federalism to give
state courts the initial opportunity to pass upon and correct errors of federal law in a state prisoner’s
conviction. Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512 (1971). The purpose and
policy underlying the exhaustion doctrine is to preserve the role of the state courts in the application
and enforcement of federal law and prevent disruption of state criminal proceedings. Rose v. Lundy,
455 U.S. 509, 518, 102 S. Ct. 1198, 1203 (1982)(citing, Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 490-91, 93 S. Ct. 1123, 1127 (1973)).
A petition under 28 U.S.C. § 2254 “must be dismissed if state remedies have not been
exhausted as to any of the federal claims.” Castille v. Peoples, 489 U.S. 346, 349, 109 S. Ct. 1056,
1059 (1989). The exhaustion doctrine “requires that the Texas Court of Criminal Appeals be given
an opportunity to review and rule upon the petitioner’s claim before he resorts to the federal courts.”
Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Once a federal claim has been fairly
presented to the Texas Court of Criminal Appeals, either through direct appeal or collateral attack,
the exhaustion requirement is satisfied. See generally, Castille, 489 U.S. at 351, 109 S. Ct. at 1060.
In order to avoid piecemeal litigation, all grounds raised in a federal application for writ of habeas
corpus must first be presented to the state’s highest criminal court prior to being presented in federal
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court. Rose, 455 U.S. at 522, 102 S. Ct. at 1205. If even one claim is unexhausted, the entire
petition must be dismissed for failure to exhaust state remedies. Id.
Although Petitioner asserts he challenged his original conviction in a state application for
habeas corpus relief in 1983, he admits he has not challenged the calculation of his sentence in a
state application. Because Petitioner has not presented his claims to the Texas Court of Criminal
Appeals, there has been no fair presentation of his claims to the state court, and thus, the state court
has not had the initial opportunity to pass upon and correct any alleged errors of federal law.
Nevertheless, the exhaustion requirement can be excused when exceptional circumstances exist.
Deters v. Collins, 985 F.2d 789 (5th Cir. 1993). However, Petitioner makes no allegations that any
exceptional circumstances are present in this case. Therefore, the Court finds that Petitioner has
failed to exhaust his state court remedies and has failed to allege any circumstances which would
allow the Court to excuse the exhaustion requirement.
RECOMMENDATION
It is, therefore, recommended that Petitioner’s Application for Writ of Habeas Corpus be
DISMISSED WITHOUT PREJUDICE for failure to exhaust available state court remedies.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.

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A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a district court
rejected a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without
reaching the petitioner’s underlying constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal of the Petitioner’s section 2254
petition on substantive or procedural grounds, nor find that the issues presented are adequate to
deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

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A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct.
466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 23rd day of May, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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