IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10422
(Summary Calendar)
JAMES EDWARD WHITEHEAD,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
- - - - - - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
- - - - - - - - - - - - - -
October 15, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:
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.
I.
FACTS AND PROCEEDINGS
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 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.
1
An application for a writ of habeas corpus under § 2254
is the proper method for a prisoner’s challenge to the
calculation of his time credits. See Clarke v. Stalder, ___ F.3d
___ (5th Cir. Sep. 1, 1998, No. 96-30313) (en banc) slip. op. at
6-8.
2
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.
II.
ANALYSIS
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
2
See 28 U.S.C. § 2253(c)(2).
3
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 of a constitutional right on one or more of his the
underlying claims.4 Should we have any doubt about issuing a COA,
though, we shall grant it.5
Whitehead argues that the district court abused its discretion
in dismissing his application for failure to exhaust state
remedies. He contends that the magistrate judge’s finding — that
the claim advanced in his state application implicated the denial
of "calendar" time while on parole — was based on only a partial
review of the allegations made in his state application. Referring
to state writ application No. F89-AO732-PM, Whitehead contends that
a thorough review of this state filing in its entirety reveals an
extensive discussion of the facts underlying his claim for
erroneous deprivation of both “flat” time and “good” time credits.
He argues that this application, when liberally construed, contains
the same facts that underlie his federal habeas claim. As such,
3
See Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.
1997)(applying the COA standard to nonconstitutional issue of
exhaustion of state remedies).
4
Id.
5
Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert.
denied, 118 S. Ct. 399 (1997).
4
urges Whitehead, he is being denied his constitutional rights under
the Eighth and Fourteenth Amendments because he is being deprived
of his “flat” and “good” time credits as a result of an erroneous
calculation. This, he again insists, deprives him of his discharge
date and of a proper review of his eligibility for release on
parole.
A fundamental prerequisite to federal habeas relief under §
2254 is the exhaustion of all claims in state court prior to
requesting federal collateral relief.6 A federal habeas petition
should be dismissed if state remedies have not been exhausted as to
all of the federal court claims.7
The exhaustion requirement is satisfied when the substance of
the federal habeas claim has been fairly presented to the highest
state court.8 In Texas, the highest state court for criminal
matters is the Texas Court of Criminal Appeals.9 A federal court
claim must be the “substantial equivalent” of one presented to the
state courts if it is to satisfy the "fairly presented"
requirement.10 The habeas applicant need not spell out each
6
Rose v. Lundy, 455 U.S. 509, 519-20 (1982).
7
Id.; see also 28 U.S.C. § 2254(b)(1)(A) (writ shall not
be granted unless it appears that the applicant has exhausted
state remedies).
8
Picard v. Conner, 404 U.S. 270, 275-78 (1971).
9
Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir.
1985).
10
Picard, 404 U.S. at 275-78.
5
syllable of the claim before the state court to satisfy the
exhaustion requirement.11 This requirement is not satisfied if the
petitioner presents new legal theories or new factual claims in his
federal application.12
A careful review of his state habeas application reveals that
Whitehead did present essentially all the facts relating to his
three convictions and his parole. He asserted violations of the
Due Process, Double Jeopardy, and Cruel and Unusual Punishment
provisions of the U.S. Constitution purportedly resulting from the
respondent’s refusal to allow Whitehead credit for all of his
“flat” time and taking away his mandatory release date. He also
contended that he was entitled to “flat” or calendar time from his
release on parole until he was reincarcerated. Whitehead also
asserted that the total of his actual calendar time served plus his
newly acquired “good” time equaled or exceeded his maximum term
correctly construed and that the removal of his mandatory discharge
date violated his constitutional rights.
Importantly, Whitehead attached to his state writ application
a copy of a letter that he had written to a Ms. Byrd in the Texas
Department of Criminal Justice records office, in which he detailed
the manner in which he thought his “flat” time and “good” time
should be calculated to determine his discharge date. Moreover,
11
Lamberti v. Wainwright, 513 F.2d 277, 282 (5th Cir.
1975).
12
Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997),
cert. denied, 118 S. Ct. 1845 (1998).
6
Whitehead asserted in this letter that his 30-year sentence was not
aggravated or stacked, so that his time should be calculated on the
two 20-year stacked sentences only.
True, the primary focus of Whitehead’s state writ application
is on a claim for “street” time while on parole; however, the
factual representation in the letter attachment, liberally
construed as part of his application, is the substantial equivalent
of the factual basis of his federal application and should have
been held to be a fair presentation of his claims to the state
court.13 We conclude that Whitehead has shown that the district
court erred in dismissing his application for failure to exhaust,
thus satisfying the first part of the Murphy test.14
When the first part of the Murphy test is thus satisfied, we
must proceed to the second part: consideration whether the
prisoner has made a substantial showing of the denial of a
constitutional right on the underlying claims, as required for the
grant of a COA.15 If the district court in this case had gone on
to address the merits of Whitehead’s constitutional claims as an
alternative to its procedural holding of failure to exhaust,
consideration under the second part of Murphy would be the
appropriate course of action because the district court’s denial of
COA would have encompassed the merits of the constitutional claims
13
Picard, 404 U.S. at 275-78.
14
Murphy, 110 F.3d at 11.
15
Murphy, 110 F.3d at 11.
7
as well as the failure to exhaust. But neither the respondent nor
the district court has addressed the merits of the underlying
constitutional claims presented in Whitehead’s § 2254 application.
Consequently, if in the instant COA application, we were to address
the merits of Whitehead’s constitutional habeas claims by applying
the second part of the Murphy procedure, we would run afoul of the
requirement that initially the district court deny a COA as to each
issue presented by the applicant.
“A district court must deny the COA before a petitioner can
request one from this court. The rule contemplates that the
district court will make the first judgment whether a COA should
issue and on which issues, and that the circuit court will be
informed by the district court’s determination in its own
decisionmaking.”16 Compliance with the COA requirement of 28 U.S.C.
§ 2253(c) is jurisdictional, and the lack of a ruling on a COA in
the district court causes this court to be without jurisdiction to
consider the appeal.17
According to Muniz, however, we do have jurisdiction to
consider whether to grant or deny a COA on the issue of exhaustion
only, because that is the only issue addressed in the district
court’s COA determination. In Murphy, we did not need to reach the
second step because we determined that the district court’s ruling
— that the applicant had failed to satisfy the exhaustion
16
Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997).
17
Id. at 45.
8
requirement — was correct. Notwithstanding language in Murphy that
would seem to suggest that we should proceed to examine the
constitutional claims before granting a COA, Muniz’s recognition
that the COA requirement is jurisdictional as to each issue
requires that, once we conclude that the district court erred in
dismissing an application because of failure to exhaust, we vacate
and remand to the district court to address the merits of the
habeas claims in the first instance.
III.
CONCLUSION
Whitehead has shown that the district court erred in
dismissing his application for failure to exhaust state remedies.
We therefore grant a COA on that issue only.
The usual procedure after this court grants a COA is for the
appeal to proceed to full briefing by all parties. In this
instance, however, the sole issue before us — exhaustion of state
remedies — is indisputably resolved by the petitioner’s COA
application and the record, making further briefing on that issue
unnecessary. In Clark v. Williams,18 we granted leave to proceed
in forma pauperis, vacated the district court’s judgment, and
remanded, all without requiring briefing. That procedure is
appropriate here. We therefore vacate the judgment of the district
court denying COA for failure to exhaust state remedies and remand
18
693 F.2d 381, 382 (5th Cir. 1982).
9
this case to that court to consider the substance of Whitehead’s
habeas claims.
COA GRANTED; Judgment VACATED and Case REMANDED.
10