IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-11216
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ELVEN GENE BARTLEY,
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
(3:97-CV-2154)
_________________________________________________________________
April 7, 2000
Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The chief issue presented by this appeal is whether a
petitioner for federal habeas relief pursuant to 28 U.S.C. § 2254
can challenge in a single petition the validity of two separate
convictions of different courts of the same political subdivision.
Finding that the Criminal District Courts of Dallas County No. 3
and No. 5 are for purposes of section 2254 “a single state court,”
we remand this case to the district court for a review of the
merits of the petitioner’s claims.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
In 1968, the petitioner, Elven Gene Bartley, was charged in
the Criminal District Court of Dallas County No. 5 with the
offenses of rape, robbery, and murder with malice, all stemming
from the events of April 21, 1968. Bartley pled guilty to the
charges of robbery and murder, but he pled not guilty to the charge
of rape. On July 11, 1968, a jury convicted Bartley of rape. He
was sentenced to life imprisonment. On December 10, 1970, Bartley
was sentenced to twenty years each for the robbery and murder.1 In
1985, Bartley was paroled.
On May 25, 1995, Bartley pled guilty in the Criminal District
Court of Dallas County No. 3 to possession of a dangerous drug.2
He was sentenced to two years probation. On January 2, 1996,
following a series of probation violations, Bartley’s probation on
the drug conviction was revoked and he was sentenced to two years
imprisonment based on that conviction. Bartley did not appeal.
In October 1996, Bartley’s parole on the prior convictions for
rape, robbery, and murder was revoked. On August 27, 1996, Bartley
filed his first state petition for habeas relief with the Criminal
District Court of Dallas County No. 3. He sought review of his
guilty plea to the charge of possession of a dangerous drug and the
1
The two twenty-year sentences were to run concurrently with
his previous life sentence.
2
Bartley was charged with possession of two tablets of
Cephalexin.
2
alleged parole revocation for his prior convictions for rape,
robbery, and murder. Although at the time Bartley’s petition was
filed his parole on the charges of rape, robbery, and murder had
not been formally revoked, he argued in his petition that he had
been denied due process because he was assigned his old inmate
number and had not as of that time been given a parole revocation
hearing for the previous convictions.
The state trial court recommended that Bartley’s application
for habeas relief be denied, reasoning that most of the asserted
claims were without merit. Additionally, the court recommended
that Bartley’s claims regarding his parole revocation for the prior
convictions of rape, robbery, and murder were not properly before
the court because those convictions occurred in a different court
in the same county. Thus, the court recommended that Bartley file
a subsequent application for habeas relief in the proper court.3
On November 13, 1996, the Texas Court of Criminal Appeals, without
a written order and based upon the findings of the trial court,
denied Bartley’s petition.
On March 12, 1997, Bartley filed a second petition for state
habeas relief in the Criminal District Court for Dallas County No.
5. The petition sought review only of the parole revocation on the
prior convictions for rape, robbery, and murder. This petition was
3
The court was unable to transfer Bartley’s petition to the
Criminal District Court of Dallas County No. 5 because Bartley did
not provide the court with sufficient information to determine
where the petition should have been filed.
3
erroneously transferred by the court to the Criminal District Court
for Dallas County No. 3. On May 28, 1997, the Texas Court of
Appeals dismissed the petition under Texas’ abuse of the writ
doctrine. See Tex. Code Crim. Proc. Ann. art. 11.07, § 4 (West
1999).
On September 2, 1997, Bartley filed a petition for federal
habeas relief seeking review of his conviction for possession of a
dangerous drug and challenging his parole revocation on the prior
convictions because he had been denied a parole revocation hearing
for ten months in violation of his due process rights. The
district court, adopting the finding of the magistrate judge, held
that the parole revocation claim was procedurally barred because
the state court dismissed the claim under Texas’ abuse of the writ
doctrine, an adequate and independent state procedural rule.
Further, the district court denied relief on all claims relating to
the drug conviction.
On April 15, 1999, our court granted Bartley’s request for a
COA limited to two issues: (1) “whether a § 2254 challenge to
parole revocation and to a separate conviction can be brought in
the same petition under Rule 2(d) of the Rules Governing Section
2254 proceedings;” and (2) whether “the district court erred in
concluding that his claims regarding the 1996 parole revocation
were procedurally defaulted.” We refused to grant a COA on any
issues relating to Bartley’s drug conviction.
II
4
A
Rule 2(d) governing § 2254 habeas proceedings provides:
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, as the case may be,
he shall do so by separate petitions.
28 U.S.C. § 2254, Rule 2(d) (West 1999)(emphasis added). The
Advisory Committee Notes go on to state that:
[A] single petition may assert a claim only against the
judgment of a single court (i.e., a court of the same
county or judicial district or circuit). . . . A claim
against a judgment of a count of a different political
subdivision must be raised by means of a separate
petition.
Rule 2(d), Advisory Committee, Notes, (1976)(emphasis added).
Relying on the clear and unambiguous language of Rule 2(d) and
its corresponding Advisory Committee Notes, it appears that both of
Bartley’s convictions occurred in courts of “the same county or
judicial district or circuit”--the Criminal District Court of
Dallas County. Although the 1968 convictions and the 1995 drug
conviction were handed down by different courts within the Criminal
District Court of Dallas County--Courts No. 5 and No. 3,
respectively--both courts are part of the “14th Judicial District
of Texas.” Texas Code Ann. 24.115(a), (d) (Vernon 1999); see also
Garcia v. State of Texas, 429 S.W.2d 468, 469 (Tex. Crim. App.
1968)(stating that “the statute creating Criminal District Court
No. 5 of Dallas County conferred upon it concurrent jurisdiction
5
with all the existing Criminal District Courts of Dallas County”).
Consequently, it is procedurally proper for Bartley to raise both
his challenge to the drug conviction and his challenge to the
parole revocation in a single § 2254 habeas petition.
B
Turning to the district court’s judgment holding that
Bartley’s claims regarding his parole revocation hearing for rape,
robbery, and murder were procedurally defaulted, the state, in its
letter brief, “concedes that the district court wrongfully
determined that Bartley’s parole revocation claims are defaulted.”
Consequently, we REMAND this case back to the district court for a
determination of the merits of Bartley’s claims relating to his
parole revocation.
R E M A N D E D.
6