157 F.3d 384 (5th Cir. 1998), 98-10422, Whitehead v. Johnson

Docket Nº:98-10422
Citation:157 F.3d 384
Party Name:James Edward WHITEHEAD, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Case Date:October 15, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 384

157 F.3d 384 (5th Cir. 1998)

James Edward WHITEHEAD, Petitioner-Appellant,


Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 98-10422

United States Court of Appeals, Fifth Circuit

October 15, 1998

Page 385

James Edward Whitehead, Huntsville, TX, pro se.

Jodi L. Brown, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, SMITH and WIENER, Circuit Judges.


Petitioner-Appellant James Edward Whitehead seeks a certificate of appealability (COA) to appeal the dismissal without prejudice of his 28 U.S.C. § 2254 application, as procedurally barred for failure to exhaust state remedies pursuant to 28 U.S.C. § 2254(b)(1)(A). For the reasons hereafter explained, we grant COA, vacate the procedural ruling of the district court, and remand to that court for it to consider Whitehead's habeas claim.



In 1982 Whitehead was convicted in state court of injury to a child and aggravated assault and was sentenced to two 20-year sentences, "stacked" to run consecutively. According to Whitehead's § 2254 application, he was released on parole in February 1989 and returned to custody in July 1990 when he committed a new offense--murder--for which he was sentenced to 30 years, expressly to run concurrently with the two prior 20-year "stacked" sentences.

Whitehead filed the instant § 2254 application in July, 1996, challenging on due process and equal protection grounds the manner in which his time of incarceration is being calculated. 1 He argued in district

Page 386

court that his time should be calculated in reference to his two 20-year stacked sentences instead of his 30-year sentence, contending that, counting his calendar or "flat" time and his "good" time, he has discharged his original consecutive sentences and should no longer be held in confinement. Whitehead concluded that his 30-year sentence has been improperly stacked and that, as a result of the erroneous calculation of his time credits, he has been deprived of his discharge date and continues to be deprived of a proper review for parole eligibility. He insisted that the Texas Department of Criminal Justice (TDCJ) wrongfully extended his confinement because of its erroneous calculation of his time credits, principally by stacking the 30-year sentence which was ordered to run concurrently with the 20-year stacked sentences.

Respondent-Appellee TDCJ Director Gary L. Johnson filed a motion to dismiss, arguing that Whitehead had failed to exhaust his state-court remedies. Whitehead responded that he had presented his claim in state writ No. W89-AO732-M(A), No. 12,537-09, which was denied without written order on January 10, 1996.

The magistrate judge recommended dismissing Whitehead's application for failure to exhaust state remedies, finding that even though he had raised similar grounds for relief in two state petitions, these claims were not the substantial equivalents of his federal claim, which was therefore not fairly presented to the state court. Whitehead objected, arguing that, when liberally construed, both his state application and his federal application extensively discuss the facts underlying his claim that he had been erroneously deprived of his "flat" time and "good" time credits. He argued that the magistrate judge's conclusion was based on the form and not the substance of his pleadings, insisting that the state court had had a fair opportunity to consider his claims. The district court adopted the magistrate judge's report, dismissed Whitehead's application, and refused to grant him a COA.



A COA may be issued only if the prisoner has made a substantial showing of the denial of a constitutional right. 2 In an appeal such as this one, however, in which the applicant for COA challenges the district court's dismissal for a reason not of constitutional dimension--here, failure to exhaust state remedies--the petitioner must first make a credible showing that the district court erred. 3 Only if that is done will this court consider whether the petitioner has made a substantial showing of the denial...

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