Spring v. Caldwell

• Decision Date: 25 June 1981
• Docket Number: Civ. A. No. H-79-2570.
• Citation: 516 F. Supp. 1223
• Parties: Gilbert Manley SPRING, Petitioner, v. Harry CALDWELL, Chief of Police, City of Houston, Felix M. Stanley, Presiding Judge of the Municipal Courts, City of Houston, Harris County, Texas, Respondents.
• Court: U.S. District Court — Southern District of Texas

516 F. Supp. 1223

Gilbert Manley SPRING, Petitioner, v. Harry CALDWELL, Chief of Police, City of Houston, Felix M. Stanley, Presiding Judge of the Municipal Courts, City of Houston, Harris County, Texas, Respondents.

Civ. A. No. H-79-2570.

United States District Court, S. D. Texas, Houston Division.

June 25, 1981.

COPYRIGHT MATERIAL OMITTED

Larry Sauer, J. Patrick Wiseman, Nelson & Mallett, Houston, Tex., for petitioner.

John Helm, Asst. City Atty., Houston, Tex., for respondents.

MEMORANDUM AND ORDER

SEALS, District Judge.

This is a petition for a federal writ of habeas corpus brought under 28 U.S.C. § 2241. Petitioner alleges that he is being deprived of his liberty in violation of the Constitution of the United States.

Petitioner was arrested on November 13, 1975, for refusing to identify himself to a police officer, in violation of Section 38.02 of the Texas Penal Code.¹ On March 23, 1976, petitioner was convicted in the Houston Municipal Court and fined $100 plus costs for violation of Section 38.02. He then appealed to the Harris County Criminal Court at Law. There, petitioner attacked the validity of his conviction on the constitutional grounds raised in his federal habeas petition as claims two, three², four, five, six, seven, and nine. The County Court affirmed his conviction.

Under Texas law an appeal from a municipal court to a county court is subject to further review only if a fine exceeding $100 is imposed. Vernon's Ann.C.C.P. art. 4.03. Thus, the decision of the County Court was by the highest court of the State to which the petitioner could appeal. Thereafter, petitioner filed an application for a writ of habeas corpus in the Harris County Criminal Court at Law, alleging a denial of his rights to equal protection of the law and effective assistance of counsel. These same grounds are raised in his federal habeas petition as claims twelve and thirteen. The County Court issued the writ but denied relief. Petitioner then appealed to the Texas Court of Criminal Appeals which affirmed the judgment of the County Court denying relief and affirmed again on motion for rehearing. Finally, petitioner filed a second state petition for a writ of habeas corpus in the Harris County Criminal Court. The County Court on December 14, 1979, refused to issue the second writ. This second petition raised for the first time the additional claims set forth as claims one, eight, ten, and eleven³ in petitioner's federal habeas corpus petition.⁴ The Houston Municipal Court issued a Capias Pro Fine to enforce its judgment, which was stayed by order of this Court on December 17, 1979.

IN CUSTODY

It is first necessary to address the question of whether a person against whom a fine has been imposed by a state court and against whom a Capias Pro Fine has been issued by that court is "in custody" within the meaning of the federal habeas corpus statute, 28 U.S.C. §§ 2241, 2254. It is clear that an individual no longer need be in physical custody in order to obtain habeas relief. See, e. g., Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975) (overruled on other grounds, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)); Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

Courts have held, however, that the imposition of a fine alone is not within the intendment of federal habeas jurisdiction. Westberry v. Keith, 434 F.2d 623 (5th Cir. 1970). Accord, Wright v. Bailey, 544 F.2d 737 (4th Cir. 1976); Russell v. City of Pierre, South Dakota, 530 F.2d 791 (8th Cir. 1976); Edmunds v. Won Bae Chang, 509 F.2d 39 (9th Cir. 1975); Pueschel v. Leuba, 383 F.Supp. 576 (D.Conn.1974). In Wright, the United States Court of Appeals for the Fourth Circuit held that a fine alone with no provision for incarceration in the event of non-payment was insufficient to satisfy the "in custody" requirement. Wright, 544 F.2d at 739. Similarly, the Ninth Circuit in Edmunds stated that where the only punishment is a fine, and the court has not yet chosen to impose jail as a sanction for enforcing its judgment, then the custody requirement is lacking. The court in Edmunds went on to state that "a fine may in some circumstances prove to be the price of freedom" — where confinement is imminent. Edmunds, 509 F.2d at 41.

The case sub judice is readily distinguishable from these cases because the County Court has chosen to impose jail as a sanction for enforcing its judgment, and only a stay issued by this Court thwarted the execution of the Capias Pro Fine issued for the petitioner. (Petitioner's Exhibit no. 3).

The United States Supreme Court in Hensley v. Municipal Court, supra, held that a petitioner is "in custody" when he is subject to severe and immediate restraints on his personal liberty not shared by the public generally. There the Court emphasized the fact that the petitioner only remained at large by the grace of a stay it had entered in his behalf. Hensley, 411 U.S. at 351, 93 S.Ct. at 1574-1575.

Confinement is as imminent for petitioner here as it was in Hensley. Petitioner remains at large only by the grace of a stay issued by this Court. This is not a case of an imposition of a fine, pure and simple, nor is confinement here merely a speculative possibility.

EXHAUSTION OF STATE REMEDIES

The law of this Circuit is that a petitioner must exhaust all of the claims in his or her federal habeas petition before a court will entertain the petition. Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978) (en banc). Mixed petitions containing exhausted and unexhausted claims that do not fit an exception to the exhaustion doctrine must be dismissed without prejudice. Id. at 355. For a claim to be exhausted, the state courts must have been apprised of the facts and the legal theory upon which the petitioner based his or her claim. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The exhaustion doctrine is satisfied if the federal claim is presented to the state courts either on direct review or collateral attack. Bufalino v. Reno, 613 F.2d 568 (5th Cir. 1980).

The Court is of the opinion that the petitioner did not squarely raise his federal habeas claims one, eight, ten, and eleven until his second state petition for a writ of habeas corpus to the County Court. Respondents, in their initial proposed findings of fact and conclusions of law, conceded that petitioner had exhausted his state remedies as to all claims. The Court on this basis alone could have considered petitioner's state remedies exhausted and reached the merits of petitioner's claims, and respondents could not later be heard to complain. See Grooms v. Wainwright, 610 F.2d 344 (5th Cir. 1980); Messelt v. State of Alabama, 595 F.2d 247 (5th Cir. 1979); West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), aff'd in pertinent part en banc, 510 F.2d 363 (5th Cir. 1975); Goins v. Allgood, 391 F.2d 692 (5th Cir. 1968). The Court, however, in the interest of comity asked the parties to readdress this issue in a hearing held before it on March 20, 1981. Respondents now claim that petitioner has not fully exhausted the additional claims which he raised in his second state habeas petition. Respondents argue, that under Texas law, where the county court refuses to issue a writ of habeas corpus attacking the validity of a misdemeanor conviction the petitioner has the additional remedy of presenting his application to another judge having jurisdiction.

Under Texas law the county and district courts have original jurisdiction in habeas corpus proceedings when a petitioner attacks the validity of a misdemeanor conviction. Vernon's Ann.C.C.P. arts. 11.05, 11.09. Where the court issues the writ but denies relief the petitioner may appeal the order denying relief. Ex parte Johnson, 561 S.W.2d 841 (Tex.Cr.App.1978); Ex parte Crosley, 548 S.W.2d 409 (Tex.Cr.App.1977); Ex parte Phelper, 433 S.W.2d 897 (Tex.Cr. App.1968). However, where the court refuses to issue the writ the petitioner may not appeal, but he or she can present the application to another judge having jurisdiction. Johnson, 561 S.W.2d at 842; Mayes v. State, 538 S.W.2d 637 (Tex.Cr. App.1976). On this basis, respondents maintain that the petitioner should have presented his application to another county or district judge before seeking relief in federal court. The thrust of respondents' argument is that petitioner has failed to exhaust his state remedies, as required by 28 U.S.C. § 2254(c), on those claims raised for the first time in his second state habeas petition.

Section 2254(c) states that an applicant "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." Section 2254, however, does not bar habeas corpus relief because of a petitioner's "failure to exhaust state remedies no longer available at the time habeas is sought." 28 U.S.C. § 2254(b) (1970); Fay v. Noia, 372 U.S. 391, 434, 83 S.Ct. 822, 846, 9 L.Ed.2d 837 (1963) (overruled on other grounds, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)); Galtieri, 582 F.2d at 354. The state remedy must be both adequate and available. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

For both of these reasons, respondents' argument must fail. First, "comity does not require that the federal courts decline to exercise jurisdiction in the face of allegations that the state courts have been presented with the merits of a claim for...