Story v. Collins

• Citation: 920 F.2d 1247
• Decision Date: 11 January 1991
• Docket Number: No. 90-1313,90-1313
• Parties: 32 Fed. R. Evid. Serv. 73 Kenneth Wayne STORY, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1247

920 F.2d 1247

32 Fed. R. Evid. Serv. 73

Kenneth Wayne STORY, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 90-1313

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Jan. 11, 1991.

Kenneth W. Story, Huntsville, Tex., pro se.

S. Michael Bozarth, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before KING, GARWOOD and DUHE, Circuit Judges.

KING, Circuit Judge:

A Texas state court convicted the Petitioner-Appellant Kenneth Story (Story) in 1985 of aggravated sexual assault. After exhausting his state court remedies, Story brought this habeas corpus petition in federal district court, alleging that the Texas Department of Corrections (TDC) refused to consider him for administrative good conduct time in violation of the ex post facto clause of the United States Constitution. He also alleged that various rulings by the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. He appeals from the district court's dismissal without prejudice of his claim that the TDC improperly failed to consider him for good conduct time, and the district court's dismissal with prejudice of his claims attacking his conviction. We vacate and remand with instructions to dismiss with prejudice Story's claim that he is entitled to be considered for administrative good conduct time and affirm the district court's dismissal of Story's other claims.

I. Background

A Texas state court convicted Story in 1981 of raping a child under seventeen years of age, sentenced him to ten years in prison, and suspended his sentence subject to probation. In September 1985, a Texas state court convicted Story of aggravated sexual assault of a child under 14 years of age. The state trial court revoked Story's probation and sentenced him to a consecutive 30-year term for aggravated sexual assault.

After an unsuccessful direct appeal and a petition for state post-conviction review, which was dismissed by the Texas Court of Criminal Appeals without written opinion, Story filed this petition for a writ of habeas corpus in federal district court. He claimed that the TDC retroactively applied the 1987 version of the Prison Management Act (PMA), Tex.Rev.Civ.Stat.Ann. art. 6184o, Sec. 3(b)(2)(H) (Vernon Supp.1987), now codified as Tex. Gov't Code Ann. Sec. 498.027 (Vernon 1990), and improperly failed to consider him for administrative good conduct time. He also alleged that the state adduced insufficient evidence at trial to support his conviction; that the trial court erred when it failed to instruct the jury on the lesser included offenses of indecency with a child and indecent exposure; that the trial court erred by admitting evidence of extraneous offenses; that he was denied his right to confront witnesses; and that the trial court erred by admitting certain expert testimony.

Both parties moved for summary judgment. The state also moved to strike Story's claim that he was being denied consideration for administrative good conduct time. The district court referred Story's petition to a magistrate, who recommended that the district court dismiss all of Story's claims on the merits. Story filed objections, and after an independent review, the district court adopted the magistrate's report on all of Story's claims except his claim pertaining to good conduct time. The district court dismissed Story's good conduct time claim for want of jurisdiction and without prejudice to Story's right to seek habeas relief in the appropriate federal court. It dismissed Story's other claims with prejudice. Story filed a timely notice of appeal, and the district court issued a certificate of probable cause. Story appeals from the dismissal of all of his claims except for his claim that the jury was not instructed on lesser included offenses.

II. Good Conduct Time

Story alleges that the TDC improperly denied considering him for administrative good conduct time under the 1987 version of the PMA. He argues that he was eligible for such good conduct time under the 1983 version of the PMA, which was in effect on the date that he committed the offense, but not under the 1987 amendments. The state's retroactive application of the 1987 version of the PMA, he contends, violates the ex post facto clause of the United States Constitution. Article I, Sec. 10, cl. 1.

The district court dismissed Story's administrative good conduct time claim without prejudice because "[j]urisdiction over such a claim is based on 28 U.S.C. Sec. 2241, as distinguished from that available under [28 U.S.C.] Sec. 2254." The district court reasoned that in order "[t]o entertain a petition for habeas corpus relief under Sec. 2241, the district court must have jurisdiction over the prisoner or his custodian at the time the petition is filed." Story is confined in the Wynne Unit of the TDC at Huntsville, Texas--a location outside of the jurisdiction of the District Court for the Northern District of Texas. The district court, therefore, dismissed the claim without prejudice to Story's right to refile in the appropriate district court.

A prisoner may bring a claim for good conduct time under 28 U.S.C. Sec. 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973) (Sec. 2254 habeas petition is sole remedy for state prisoner seeking speedier release from imprisonment based on application of good conduct time). Section 2241, however, provides the general jurisdictional basis for federal courts to consider challenges to both state and federal judgments. Section 2254 specifically confers jurisdiction on the federal courts to consider collateral attacks on state court judgments, Lehman v. Lycoming County Children's Services, 458 U.S. 502, 509 n. 9, 102 S.Ct. 3231, 3236 n. 9, 73 L.Ed.2d 928 (1982), but Sec. 2241, rather than Sec. 2254, specifies the court in which a petition attacking a state court judgment must be brought.

Section 2241(a) provides that "[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." In Ahrens v. Clark, the Supreme Court interpreted this provision to mean that a district court lacks subject matter jurisdiction if the prisoner or his custodian is not confined within the district court's territorial boundaries. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948).

This interpretation proved unfortunate, however, because the district court that has jurisdiction over the prisoner frequently is not the most convenient forum in which to entertain the prisoner's habeas petition. The necessary records and witnesses often are located near the sentencing court rather than the court with jurisdiction over the prisoner, and courts with prisons within their jurisdiction receive an inordinate proportion of habeas petitions. In response to this situation, Congress in 1966 passed 28 U.S.C. Sec. 2241(d). Section 2241(d) provides:

Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application.

Section 2241(d) applies only to prisoners confined under the judgment of a state court. If the petitioner is a federal prisoner, or if the state sentencing court is in a different state from the prisoner or his custodian, the district court still must have jurisdiction over the prisoner or his custodian. In the instant case, the district court applied the rule applicable to federal prisoners to Story, who is confined under the judgment of a state court. Section 2241(d), however, directly applies to Story's petition. The District Court for the Northern District of Texas had jurisdiction over the Dallas state court that convicted Story, and thus had concurrent jurisdiction under Sec. 2241(d) and Sec. 2254 to entertain Story's claim that he should be considered for administrative good conduct time.

The state argued that the district court should not entertain Story's claim because that claim should have been the subject of a separate petition. If the state's contention is correct, we should affirm the district court's dismissal without prejudice on that basis. The state noted that Rule 2(d) of the Rules Governing Section 2254 Cases states:

A petition shall be limited to the assertion of a claim for relief against the judgment or judgments of a single state court (sitting in a county or other appropriate political subdivision). If a petitioner desires to attack the validity of the judgments of two or more state courts under which he is in custody or may be subject to future custody, as the case may be, he shall do so by separate petitions.

The state argued that the TDC, which calculates good conduct time, is the only authority attacked by Story's good conduct time claim. His other claims, they observe, attack the validity of the state court judgment. Under Rule 2(d), the state concludes, Story must bring his claim challenging the TDC's refusal to consider him for good conduct time in a separate petition. We disagree.

Story's habeas petition challenges only one judgment--the state court judgment of conviction for aggravated sexual assault. The TDC is not a state court, and the application of good conduct time is not a judgment. Story's good conduct time claim attacks the conditions of his restraint under his judgment of conviction for...